National Green Tribunal
Rukmini Chemicals Ltd vs Uttar Pradesh Pollution Control Board on 5 December, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
APPEAL NO. 16/2020
(I.A. No. 128/2022)
IN THE MATTER OF:
Rukmini Chemicals Ltd.
Office at 109/301 R.K. Nagar, Kanpur, Uttar Pradesh
Through its Director and Authorised Representative Kuldip Kumar Jain
...Appellant
Versus
Uttar Pradesh Pollution Control Board
Through its Secretary,
Building No. TC-12V, Vibhuti Khand, Gomti Nagar, Lucknow
Uttar Pradesh-226010
...Respondents
Counsel for Appellant:
Mr. Santhosh Krishnan and Mr. Aniruddha Deshmukh, Advocates
Counsel for Respondent(s):
Mr. Pradeep Mishra & Mr. Daleep Dhyani, Advocates for UPPCB
PRESENT:
HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Reserved on: September 23, 2022
Pronounced on: December 05, 2022
SYNOPSIS
Documents Para No. Page No.
Facts as stated in Memo of Appeal 2-20 2-13
Tribunal's order dated 10.07.2020 21 13-14
Reply dated 02.12.2020 filed by UPPCB 22-28 14-23
Tribunal's order dated 04.01.2021 29-30 23-24
Tribunal's order dated 24.08.2021 31 24
Report dated 30.09.2021 filed by UPPCB 32-33 24-26
IA 203/2021 with objections filed by appellant 34-38 26-28
Tribunal's order dated 12.11.2021 39 28-29
Compliance report dated 28.07.2022 filed on 01.08.2022 40-42 29-35
Documents appended to the report dated 28.07.2022 43-46 35-39
Objections of appellant filed on 18.08.2022 to the report 47 40-46
dated 28.07.2022/01.08.2022
Documents appended with objections of appellant dated 48-56 46-49
18.08.2022
1
Arguments 57-59 49-50
Issues 60 51-52
Issues I and II 61-99 52-67
Issue III 100-101 67-68
Issue IV 102-141 68-86
Issue V 142-183 86-119
Issues VI and VIII 184-185 119
Issue VII 186-215 119-130
Offence under Prevention of Money Laundering Act, 2002 187-213 120-130
Operative part 216-218 130-131
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This Appeal is at the instance of M/s Rukmini Chemicals Limited, having its registered office at 109/301, R.K. Nagar, Kanpur, State of Uttar Pradesh, arising from order dated 28.05.2020 passed by Regional Officer, Uttar Pradesh Pollution Control Board (hereinafter referred to as 'RO UPPCB'), computing and demanding environmental compensation of Rs. 46,67,80,837.50/- from appellant. Appeal has been preferred under Section 18(1) read with Section 16(c) of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010').
Facts as stated in Memo of Appeal:
2. Facts in brief, as stated in memo of appeal, are, that appellant was incorporated as a Private Limited Company, registered under Companies Act, 1956 vide Certificate of Incorporation dated 11.08.1995, issued by Registrar of Companies, Kanpur, UP. Later, vide certificate of Registration dated 06.02.1996, appellant became a public limited company and registered as M/s. Rukmini Chemicals Limited.
3. Appellant company was engaged in the operation of chromium based chemical factory. It was manufacturing Basic Chrome Sulphate (hereinafter referred to as 'BCS') and Sodium Dichromate. No Objection Certificate (hereinafter referred to as 'NOC') dated 31.08.1996 was issued by UP Pollution Control Board (hereinafter referred to as 'UPPCB') to 2 appellant for production of following items:
Sr. No. Name of the Product Quantity
1. Sodium Dichromate 2.4 MT/day
2. Basic Chrome Sulphate 4.3 MT/day
4. NOC also provided for use of raw material, Chromite Ore 6.0 MT/day; Soda Ash 4.0 MT/day; Lime Stone 6.0 MT/day and fuel as Rice Husk 2.75 MT/day. NOC also provided various conditions which we may refer later as and when the same are required.
5. Appellant commenced commercial production/operation on 09.03.1998 and ceased its operation on 31.03.2004.
6. Letter dated 01.04.2004 sent by appellant to General Manager, Industrial Sector, Kanpur Dehat, informing that production and sales activities of the unit have been closed w.e.f. 31.03.2004. Thereafter, a closer notice dated 07.02.2005 was also served by UPPCB upon appellant commanding closure of unit due to violation of environmental norms and laws.
7. For the purpose of constructing regular landfill facility in the lease area, appellant and other units made contributions. Construction of land fill facility was completed in 2005 and information was communicated to UPPCB on 30.09.2005 for seeking Environmental Clearance (hereinafter referred to as 'EC') for use of said facility which was not granted. Instead, infrastructure facility, constructed by Kanpur Pradooshan Niyantran Samiti (hereinafter referred to as 'KPNS'), was handed over to M/s. Bharat Oil and Waste Management. Protest was raised by contributing units. Member Secretary, UPPCB assured members of KPNS that entire chrome waste at Khanchandpur, Rania, Kanpur Dehat would be lifted by Bharat Oil and Waste Management. However, no such disposal actually took place.
3
8. For realization of outstanding dues, Uttar Pradesh Finance Corporation (hereinafter referred to as 'UPFC') initiated action under Section 29 of State Finance Corporation Act, 1951 (hereinafter referred to as 'SFC Act 1951'). Possession of appellant's unit was taken over by UPFC on 25.08.2009.
9. This Tribunal was seized of certain proceedings pertaining to pollution of River Ganga in OA No. 200/2014, M.C. Mehta vs. Union of India & Others wherein Tribunal passed order on 22.08.2019 for review of progress of compliance of directions of Tribunal. In respect of Chromium dump at Kanpur, relevant extract of the order reads as under:
"Chromium dump has been stored since 1976 which is required to be shifted to TSDF. The State of Uttar Pradesh may undertake health survey of the area and ensure shifting of the Chromium dumps within three months failing which it would be liable to pay environmental compensation of Rs. 10 lakhs per month to CPCB besides furnishing performance guarantee of Rs. 1 Crore to CPCB."
10. Appellant was not a party to the proceedings in OA No. 200/2014 (supra).
11. Tribunal also constituted a Committee, headed by Justice Arun Tandon, Former Judge, Allahabad High Court, vide order dated 06.08.2018 in OA No. 200/2014 (supra). The said Committee submitted report dated 25.09.2019 and 26.09.2019 and in reference thereto, OA No. 985/2019, In Re: Water Pollution by Tanneries at Jajmau, Kanpur, Uttar Pradesh and OA No. 986/2019, In Re: Water Pollution at Rania, Kanpur Dehat & Rakhi Mandi, Kanpur Nagar, Uttar Pradesh were registered separately, vide order dated 27.09.2019.
12. Referring to Tribunal's order dated 27.09.2019 passed in OA No. 200/2014 (supra); OA Nos. 985/2019 and 986/2019 (supra), RO, 4 UPPCB issued show cause notice dated 24.10.2019, requiring appellant to show cause as to why environmental compensation of Rs. 46,67,80,837.50/- may not be saddled upon it, applying 'Polluter Pays' principle on account of unscientific handling and dumping of hazardous waste comprising hexavalent Chromium and thereby violating provisions of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 (hereinafter referred to as 'HOWMTM Rules, 2016'). Similar notices with different amount of environmental compensation were issued to five other units. Representatives of other units personally met Chief Environment Officer, UPPCB on 01.11.2019 wherein they were given impression that since matter is still under consideration, before taking final decision, affected persons would be heard, hence appellant assumed that no written statement was necessary and did not submit any reply to show cause notice dated 24.10.2019.
13. RO UPPCB having not received any objection/reply from appellant to show cause notice dated 24.10.2019, proceeded further and passed final order dated 19.11.2019 requiring appellant to deposit environmental compensation to the tune of Rs. 46,67,80,837.50/-. The relevant extract of the contents of show cause notice dated 24.10.2019 (annexure A10 at page 104 of paper book) are reproduced as under:
"Ñi;k ek0 ,u0th0Vh0 esa fopkjk/khu vks0,0 la0&200@2014 ,e0lh0 esgrk cuke ;wfu;u vkWQ bf.M;k o vU; esa ikfjr vkns'k fnukad 07-08-2019 ds lalqxr va'k fuEuor gSa & ".... vii) Other directions including displaying water quality data in public domain and at prominent places, development of bio-diversity parks, prohibition of river bed mining, remediation of chromium dumpsites in Uttar Pradesh, collection of compensation from violators and involvement of society including religious, charitable, social and educational institutions for preventing and remedying pollution of River Ganga....."
Ekk0 U;k;ewfrZ Jh v:.k V.Mu v/;{k ekWuhVfjax desVh }kjk fnukad 08-08-2019 dks vks0,0 la0 200@2014 esa ikfjr vkns'k ds vuqikyu dh leh{kk cSBd esa fuEu funsZ'k fn;s x;s gSa & "It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The committee 5 directed CPCB to issue notice for levy of Environmental Compensation to the industries which have caused and are causing damage to the environment."
Ekk0 राष्ट्रीय gfjr vf/kdj.k] ubZ fnYyh }kjk vks0,0 la0&985@2019 ,oa vks0,0 la[;k 986@2019 esa fnukad 27-09-2019 dks ikfjr vkns'k ds vuqikyu esa 'kklu Lrj ij lEiUu cSBd fnukad 17-10-2019 dks leh{kk ds nkSjku fn;s x;s funsZ'k ds vuqlkj ^^ftu m|ksxksa }kjk viuk Øksfe;e osLV meju] प्रसिद्धपुर ,oa xzke [kkupUnziqj] tuin dkuiqj nsgkr esa voS| :i ls MEi fd;k x;k gS] ds fo:) Polluter Pays Principle ds vk/kkj ij i;kZoj.kh; {kfriwfrZ vf/kjksfir dj olwyh dh dk;Zokgh dh tk;sA** mDr funsZ'k ds vuqØe esa {ks=h; dk;kZy;] dkuiqj nsgkr ds i=kad 1515@vkj&130@2019 fnukad 22-10-2019 }kjk izkIr vk[;kuqlkj jfu;kW] dkuiqj nsgkr ds vUrxZr xzke&[kkupUniqj] meju] Qrsgiqj jks'kukbZ ds vk;Zuxj] jktsUnz uxj pkSjkgk ,oa xzke&fpjkSjk dk HkwxHkhZ; ty voS| :i ls MEi gSDlkoSysUV Øksfe;e ls iznfw "kr gqvk gSA eSllZ रुक्मिणी dsfedYl izk0 fy0] jfu;k] dkuiqj nsgkr ftldh mRiknu {kerk 3.5 ,eVhMh Fkh] ds }kjk mRiknu vof/k ds nkSjku m|ksx ls tfur gsDlkosysUV Øksfe;e ;qDr ifjladVe; vif'k"V dk vlqjf{kr <ax ls Hk.Mkj.k@MEi fd;k x;k gSA voS/k :i ls Hk.Mkfjr dqy ifjladVe; vif'k"V 62225 ,eVh esa vkids m|ksx dk 16.67 izfr'kr ;ksxnku gSA dsUnzh; iznw"k.k fu;a=.k cksMZ] fnYyh }kjk ifjladVe; ,oa vU; vif'k"V ¼izca/ku ,oa lhekikj lapkyu½ fu;e] 2016 ds izkfo/kkuksa dk myya?ku fd;s tkus ds ifjizs{; esa i;kZoj.kh; {kfriwfrZ vkadfyr fd;s tkus ds laca/k esa xkbZMykbu tkjh dh x;h gS] ftlesa fuEu izkfo/kku gS % Environmental Compensation (EC) = Q x ERF x R Where Q is noticed or observed quantity (in tonne) of hazardous or other wastes which have not been managed in compliance with various provisions of the Acts/Rules/Guidelines/conditions of the authorisation/directions issued by CPCB/SPCB/PCC/MoEF&CC (barring procedural violations which have not caused environmental damage) ERF = Environmental Risk Factor which is a number (as given in Table 1 below) denoting the increasing degree of risk to the environmental and human health due to the scenarios as given in the table:
S. Violation ERF
No.
For Hazardous For Other
Waste Waste*
1- When hazardous and other 1.5 0.3
wastes is disposed at
unauthorised place or handed
over or sold to unauthorised party
2- When treatment has not been 1.0 0.2
imparted, as required, but only
partial treatment has been given
(TSDF/Actual user)
3- When product (derived from 1.0 0.2
hazardous or other waste is not
confirming to prescribed
specification or is specified for
restricted used but sold in open
market against (in case of actual
user)
4- Wastes found stored beyond the 0.1 0.05
stipulated period (refer Rule 8 of
the HOWM Rules, 2008)
6
R = Environmental Compensation factor, which may be taken as Rs.30,000.
mDr ds vuqlkj dh xbZ x.kuk ds vk/kj ij vkids m|ksx ds fo:) :i;s 46,67,80,8437.50/- dh i;kZoj.kh; {kfriwfrZ vkadfyr dh xbZ gSA vr% mijksDr ifjizs{; esa vkidks funsZf'kr fd;k tkrk gS fd 15 fnu ds vanj mijksDr ds laca/k esa fLFkfr Li"V djrs gq, viuk izfrmRrj {ks=h; dk;kZy; ,oa cksMZ eq[;ky;] y[kuÅ esa izsf"kr fd;k tkuk lqfuf'pr djsaA Ñi;k uksV djsa fd mDr uksfVl esa iznRr 15 fnu dh le;kof/k esa izfrmRrj u izkIr gksus vFkok larks"ktud izfrmRrj u gksus dh fLFkfr esa Polluter Pays Principle ds vk/kj ij bdkbZ }kjk lapkyu ds nkSjku tfur osLV dks mDr LFky ij MEi fd;s tkus ds n`f"Vxr bdkbZ ij ,oa bdkbZ ds mRrjnk;h O;fDr;ksa ij vkadfyr dh xbZ :i;s 46,67,80,837.50/- dh i;kZoj.kh; {kfriwfrZ vf/kjksfir dj nh tk;sxh] ftldk lEiw.kZ mRrjnkf;Ro m|ksx ds mRrjnk;h O;fDr;ksa dk gksxkA "
"That the relevant portion of the Order dated 07.08.2019 passed in O.A. No.200/2014 passed by the Hon'ble N.G.T. in the matter of M.C. Mehta Versus Union of India and others, is as follows:
".... vii) Other directions including displaying water quality data in public domain and at prominent places, development of bio-diversity parks, prohibition of river bed mining, remediation of chromium dumpsites in Uttar Pradesh, collection of compensation from violators and involvement of society including religious, charitable, social and educational institutions for preventing and remedying pollution of River Ganga....."
That the following directions were issued during the Review Meeting in compliance of order dated 08.08.2019 passed in O.A. No. 200/2014 by the Monitoring Committee lead by Hon'ble Justice Mr. Arun Tandon:-
"It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The committee directed CPCB to issue notice for levy of Environmental Compensation to the industries which have caused and are causing damage to the environment."
That in compliance of Order dated 27.09.2019 passed in O.A. No.985/2019 and O.A. No.986/2019 by the Hon'ble National Green Tribunal, New Delhi, the directions were issued by the Review Committee in its meeting held on 17.10.2019 at state level that the Industries who have illegally dumped their Chromium Waste in Umran, Prasidhpur and Village Khanchanderpur, District Kanpur Dehat, on them the fine for environmental compensation loss shall be imposed and its recovery shall be made from them on the basis of Polluter Pays Principle.
That in compliance of the aforesaid directions, in accordance with the report received from the Regional Office, Kanpur Dehat vide its Letter No.1515/R-130/2019 dated 22.10.2019, the Ground Water have been polluted in Village Kanchander Pur, Umran, which falls under Rania, Kanpur Dehat and Village Arya Nangar, Rajender Nagar Chauraha and Village Chirora under Fatehpur Roshnai due to illegal dumping of Hexavalent Chromium. M/s Rukmani Chemicals Pvt. Ltd. Village Rania, Kanpur Dehat, whose production capacity was 3.5 MTD which have done illegal storage/dumping of Hazardous Waste containing Hexavalent Chromium during the period of their production 7 in a unsecured manner. That out of total 62225 MT illegally stored Hazardous Waste, the contribution of your factory is 16.67 percent.
That the Central Pollution Control Board, Delhi have issued the guidelines for calculation of environmental compensation in accordance with the provisions of the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016, wherein the following provisions have been laid down: -
Environmental Compensation (EC) = Q x ERF x R Where Q is noticed or observed quantity (in tonne) of hazardous or other wastes which have not been managed in compliance with various provisions of the Acts/Rules/Guidelines/conditions of the authorisation/directions issued by CPCB/SPCB/PCC/MoEF&CC (barring procedural violations which have not caused environmental damage) ERF = Environmental Risk Factor which is a number (as given in Table 1 below) denoting the increasing degree of risk to the environmental and human health due to the scenarios as given in the table:
S. Violation ERF
No.
For Hazardous For Other
Waste Waste*
1. When hazardous and other 1.5 0.3
wastes is disposed at
unauthorised place or handed
over or sold to unauthorised
party
2. When treatment has not been 1.0 0.2
imparted, as required, but only
partial treatment has been given
(TSDF/Actual user)
3. When product (derived from 1.0 0.2
hazardous or other waste is not
confirming to prescribed
specification or is specified for
restricted used but sold in open
market against (in case of actual
user)
4. Wastes found stored beyond the 0.1 0.05
stipulated period (refer Rule 8 of
the HOWM Rules, 2008)
R = Environmental Compensation factor, which may be taken as Rs.30,000.
That after doing calculation in the abovementioned manner the total environmental loss of Rs. 46,67,80,837.50/- has been calculated against your factory.
Therefore, in view of the abovementioned circumstances, you are hereby directed to clarify the above situation within 15 days and submit your reply before the Regional Office and Board Headquarters, Lucknow. Kindly note, in the event of not receiving any reply or satisfactory reply in this regard within a period of 15 days, then the fine of Rs. 46,67,80,837.50/- will be imposed as environmental 8 compensation on the basis of Polluter Pays Principle against the factory and the employees of the factory for dumping the waste produced during the operation of factory at the abovementioned place."
(English translation by Tribunal)
14. Appellant filed protest letter dated 26.11.2019 before RO UPPCB stating that it had already closed its manufacturing operations on 31.03.2004; unit could not function up to its optimum capacity of 3.5 MT/D due to financial crises; the sludge generated was stored inside the factory premises by laying a plastic sheet on the ground; sludge was neither stored outside the factory premises nor transferred and dumped elsewhere; sludge is still lying stored safely in the factory premises; K.K. Jain, Director of appellant's company has become blind and 100% handicapped since January 2001; and, due to non-discharge of financial liability to UPFC, possession of unit has been taken by UPFC, therefore, imposition of penalty upon appellant is wholly unauthorized and illegal.
15. Another protest letter dated 14.12.2019 was submitted to Member Secretary UPPCB. It was stated therein that appellant was not aware of orders of Tribunal order since it was not a party therein; company commenced its production on 09.03.1998 and stopped functioning on 31.03.2004; besides, unit also did not operate during several intermittent durations for one or the other reasons; the working capacity of unit was 3.5 MT/day and average waste discharged from factory unit was about 0.5 MT/day; company was not in existence in 1976, hence for dumping of BCS waste at Umran, Prasidhpur, Village Khanchandpur, Kanpur Dehat, appellant is not liable; company purchased a total 1382 MT Chromite Ore out of which 116 MT Solid waste was generated which was stocked within the factory premises by laying thick plastic sheets on the ground which also prevented seepage of leachate in the ground; waste was neither 9 thrown outside factory premises nor dumped elsewhere or at Umran, Prasidhpur, Village Khanchandpur, Kanpur Dehat; stored waste contained only 0.0%-0.5% Chromium; there were more than 21 Chromium based factories operated between 1976 to 2019 which were producing BCS waste in the area and operated in the vicinity of appellant unit and a list of such industries is given alongwith the said representation naming the following units.
i.) Cerulean Chemicals Pvt. Ltd., Rania, Kanpur Dehat ii.) Waris Chemicals Pvt. Ltd., Rania, Kanpur Dehat iii.) Hielger Chemicals Pvt. Ltd., Rania, Kanpur Dehat iv.) Rukmini Chemicals Pvt. Ltd., Rania, Kanpur Dehat v.) Chandni Chemicals Pvt. Ltd., Rania, Kanpur Dehat vi.) Amelia Textiles & Chemicals Pvt. Ltd., Rania, Kanpur Dehat vii.) Unichem (India), Chaubepur, Kanpur viii.) Khanna Vivek Chemicals Pvt. Ltd., Panki, Kanpur ix.) Kalina Chemicals Pvt. Ltd., Chaubepur , Kanpur x.) Supreme Chemicals, Unnao xi.) Wood Burn Chemicals Ltd., Unnao xii.) Indian Chemical Corp., Jajmau, Kanpur xiii.) Kanpur Chemical Works, Anwarganj, Kanpur xiv.) Prahlad Rai Chemicals, Near Juhi, Rakhi Mandi Kanpur xv.) Dinkar Chemicals Pvt. Ltd., Fazal Ganj, Kanpur xvi.) Solar Chemicals Pvt. Ltd., Fazal Ganj, Kanpur xvii.) Madhuchandra Techno Chem Pvt. Ltd, Chaudagra, Fatehpur xviii.) KU Chemicals, Fatehpur Roshnai, Rania, Kanpur Dehat xix.) Bharat Chemicals, Akrampur, Unnao xx.) RC Chemicals, Akrampur, Unnao xxi.) Shimco Chemicals Pvt. Ltd., Unnao xxii.) Prime Chemicals, Unnao 10 xxiii.) SC Manufacturers, Unnao
16. In the above list, 8 industries of KANPUR, 8 industries of UNNAO and 1 industry of FATEHPUR are mentioned. Only 6 industries of KANPUR DEHAT including appellant are mentioned.
17. Appellant further said that since no dump site was provided by UPPCB, therefore, the said units were dumping waste in the locality but appellant was not one of them and never dumped its waste on the said site instead stored the same safely within factory premises; in 1994, UPPCB was allotted 10.5 hectares of land by State of UP in Village Kumbhi, Kanpur Dehat, for developing a Common Secured Land Fill Facility (hereinafter referred to as 'CSLFF') in 1994 but it did not develop the same for a long time; in 2003, Chromium based factories and others formed a society namely KPNS to develop the said site; pursuant thereto, vide lease deed dated 11.03.2003, 3 hectares of land was allotted by UPPCB to the said society for development of CSLFF; constructions were made and completed in 2005 but UPPCB did not allow KPNS to use the land for the purpose of dumping of waste and instead transferred the same to M/s. Bharat Oil and Waste Management for operation; when dumping has been continuous since 1976 why only 6 units have been singled out for imposition of environmental compensation, particularly, when the said units have functioned between 1991 to 2005 and other units which are functioning from 1976 and onwards, have not been proceeded against; Member Secretary, UPPCB in its letter dated 01.04.2009 sent to Member Secretary, Central Pollution Control Board (hereinafter referred to as 'CPCB') informed that as per study report of IITR, total BCS waste lying in the locality was around 45000 MT while in the notice dated 19.11.2019, quantity has been shown as 62225 MT; appellant's company has been wrongly implicated, particularly, for something which has been done by 11 others; moreso, all the operations have closed long back and factory has been dismantled; total assets of the company are nil since physical possession was taken by UPFC; under Section 29 of SFC Act, 1951 on 25.08.2009 and assets were sold to some other buyer for realization of outstanding dues from appellant; company purchased total 1382 MT Chromite Ore out of which 116 MT solid waste generated but the same was stored in the factory premises and not dumped at the disputed site i.e., Umran Prasidhpur, Village Khanchandpur, Kanpur Dehat; and waste is still lying dumped within the factory premises as per information of appellant; company has no financial capacity to pay such a huge amount of compensation.
18. Protest petition was not paid any heed and instead, it appears that recovery proceedings were initiated and citation dated 08.01.2020 was issued by Tehsildar under provisions of UP Revenue Code, 2006 for recovery of Rs. 46,67,80,837.50/- as arrears of land revenue from appellant. Consequently, appellant approached this Tribunal in OA No. 20/2020, Rukmini Chemicals Ltd. vs. UPPCB & Others challenging order dated 19.11.2019. The above OA was disposed of vide order dated 28.01.2020 which reads as under:
"Grievance in these applications is against orders of the Uttar Pradesh State PCB assessing compensation on Polluter Pays' principle for violation of law. Though these applications under Section 14 of the NGT Act, 2010 are not maintainable, we have treated the same to be appeal under Section 16 of the NGT Act, 2010.
According to the applicants, their units were not in operation at the relevant time and did not dump the hazardous waste for which they are held liable. This fact could not be pointed out as opportunity of hearing was not given.
Without expressing any opinion on merits, we direct that the impugned orders may be treated as a proposal with reference to which the applicants may furnish their response to the UP State PCB within two weeks. The UP State PCB may consider the objections of the applicants and pass an appropriate order within four weeks thereafter dealing with the matter on merits, in accordance with law. The application is disposed of."12
19. Pursuant to the liberty granted by this Tribunal vide order dated 28.01.2020, appellant filed representation dated 05.02.2020 (Annexure A/18 at page 162 to the memo of Appeal). Besides other, grounds taken in the representation are that copy of the reports, adverse to appellant, were not supplied; effective opportunity was not granted; UPPCB has not acted impartially; decision is pre-determined and pre-disposed; appellant has been selectively targeted alongwith other 5 units; quantity of Chromium waste at one point of time was 45000 MT and another point shown as 62225 MT without explaining as to how it got increased; there is no substantive statutory provision empowering UPPCB to impose environmental compensation; claim is time barred; appellant was not responsible for dumping of the alleged Chromium waste at the questioned site, appellant unit had stocked entire waste in thick plastic sheets, within factory premises and not disposed at the questioned site; HOWMTM Rules, 2016 were not applicable during the period when appellant's unit was functioning, the said Rules were not even existence; hence question of violation of the said Rules does not arise and no amount is recoverable from appellant; and without applying mind to the various issues raised by appellant, RO UPPCB has passed impugned order dated 28.05.2020.
20. No heed was paid to the said representation and instead RO UPPCB passed order dated 28.05.2020 wherein the amount of compensation was maintained as Rs. 46,67,80,837.50/-. Therefore, appellant preferred present Appeal. Grounds taken in Appeal are similar as taken before the authorities which we have already referred to above. Tribunal's order dated 10.07.2020:
21. Appeal came up for initial hearing on 10.07.2020. Tribunal noticed the contentions advanced on behalf of appellant and issued notice to 13 respondent UPPCB to file its response to Appeal.
Reply dated 02.12.2020 filed by UPPCB
22. UPPCB has referred to the background facts stating that Monitoring Committee under Chairmanship of Justice Arun Tandon, was constituted to ensure compliance of order of Tribunal passed in OA No. 200/2014 (supra). The said Committee in its meeting held on 08.08.2019 directed UPPCB as under:
"It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The Committee directed CPCB to issue notice for levy of Environmental compensation to the industries which have caused and are causing damage to the environment."
23. Two reports dated 25.09.2019 and 26.09.2019 submitted by Committee were considered by Tribunal on 27.09.2019 while considering OA No. 985 and 986/2019 (supra) and after considering the report, Tribunal issued certain directions. The relevant extract of said order dated 27.09.2019 is as under:
"2. The order of this Tribunal dealt with the matter on transfer by the Hon'ble Supreme Court of proceedings pending before it in W.P. (Civil) No. 3727/1985 on the subject of control of pollution of River Ganga. The Tribunal dealt with the matter vide two orders 10.12.2015 and 13.07.2017 with respect to different segments. Execution of the said orders is pending. The last order on the subject was passed on 22.08.2019, dealing with prevention of discharge of untreated industrial waste and sewage in Ganga and its tributaries, installation, maintenance and upgradation of STPs , CETPs and ETPs, control of dumping of waste, regulating the flood plains, maintaining e-flow and taking other steps. An extract from the order to the extent relevant for dealing with the present issue is as follows:
"16. As already observed by this Tribunal including in the order dated 14.05.2019 that River Ganga being National River with distinct significance for the country, even a drop of pollution therein is a matter of concern. All the authorities have to be stringent and depict zero tolerance to the pollution of River Ganga. Wherever STPs are not operating, immediate bioremediation and/or phytoremediation may be undertaken if feasible. To avoid procedural delay of tender processes, etc. specifications and norms for undertaking such activities may be specified in consultation with the CPCB as was earlier directed in our order dated 29.11.2018. Performance guarantees may be required to be furnished for ensuring timely performance. It needs to be ensured 14 that setting up of STPs and sewerage network to be completed and carried out so as to avoid any idle capacities being created. Performance guarantees may be taken for preventing such defaults.
17. Wherever the work has not commenced, it is necessary that no untreated sewage is discharged into the River Ganga. Bioremediation and/or phytoremediation or any other remediation measures may start as an interim measure positively from 01.11.2019, failing which the State may be liable to pay compensation of Rs. 5 Lakhs per month per drain to be deposited with the CPCB. This however, is not to be taken as an excuse to delay the installation of STPs. For delay of the work, the Chief Secretary must identify the officers responsible and assign specific responsibilities. Wherever there are violations, adverse entries in the ACRs must be made in respect of such identified officers. For delay in setting up of STPs and sewerage network beyond prescribed timelines, State may be liable to pay Rs. 10 Lakhs per month per STP and its network. It will be open to the State to recover the said amount from the erring officers/contractors.
18. With regard to works under construction, after 01.07.2020, direction for payment of environmental compensation of Rs. 10 lakhs per month to CPCB for discharging untreated sewage in any drain connected to river Ganga or its tributaries and Rs. 10 lakhs per month to CPCB per incomplete STP and its sewerage network will apply. Further with regard to the sectors where STP and sewerage network works have not yet started, the State has to pay an Environmental Compensation of Rs. 10 lakhs per month after 31.12.2020. The NMCG will also be equally liable for its failure to the extent of 50% of the amount to be paid. Till such compliance, bioremediation or any other appropriate interim measure may start from 01.11.2019.
23. It was stated that though the tanneries were closed for violating the norms of discharge, the dues have not been collected from the members of the CETPs and the industries are clandestinely operating as shown from the data of water samples which contained high Chromium.
24. Chromium dump has been stored since 1976 which is required to be shifted to TSDF. The State of Uttar Pradesh may undertake health survey of the area and ensure shifting of the Chromium dumps within three months failing which it would be liable to pay environmental compensation of Rs. 10 lakhs per month to CPCB besides furnishing performance guarantee of Rs. 1 Crore to CPCB.
25. Let the remedial measures be taken by the SPCB for effective monitoring by installing CCTV cameras or undertaking surveillance in any other manner with the help of local police."
3. Though the matter relating to all aspects of pollution of River Ganga is being separately dealt with as above, present reports highlight an emergent issue threatening the life and health of citizens in a particular area requiring intervention by this Tribunal. We thus proceed to deal with the said reports. Ms. Katyani, Advocate present 15 in court is appointed as Amicus to assist in the matter. Mr. Rajkumar, Advocate for the CPCB present before the Tribunal enters appearance.
4. We first take up the report filed in O.A No. 986/2019 relating to Kanpur Nagar, Uttar Pradesh around the area of Chromium dump at Rania, Kanpur Dehat and Rakhi Mandi, Kanpur Nagar Water Pollution at Rania, Kanpur Dehat and Rakhi Mandi, Kanpur. As already noted, the said dump of hazardous Waste has been in existence since 1976 and inspite of repeated orders, the authorities have failed to ensure its shifting. This gross failure of responsibility by the State of U.P. has resulted in situation depicted in the report which we will presently refer.
5. Justice Arun Tandon along with the representatives of the NMCG, CPCB, UPPCB, UP Jal Nigam and the local residents of the area 4 visited the sites and noticed the status of the Rania and Rakhi Mandi, Kanpur as follows:
"Status at Rania The Committee found that huge dump of chromium was stacked about 500 meter away on the right side of the Kanpur-Jhansi Highway in village Khan chandpur falling in district Kanpur Dehat. Photographs of the dump were taken and are enclosed along with the report. The Committee was informed that the land over which the chromium dump is lying is either private land or the land belonging to Gram Sabha. The rain water collected near the dump was green in colour.
The Committee was informed by the residents of the area that the water which comes out from hand pump/bore well was coloured. It was unfit for drinking. The Committee accordingly collected samples from various places within the radius of around 150 meter both towards the highway from the dump as well as from the opposite direction. At all places the Committee found that colour of the water, sample thereof has been taken was greenish. Even the water from the bore well situate within a factory and was more than 150 meter deep had the same colour.
The Committee was taken across the highway by the local residents and the Committee could notice that the water from the hand pumps which was being used by the inhabitants of the locality was green in colour. Photographs of the same have been taken, samples have been drawn for analysis. Water from the hand pump at roadside dhaba was also provided to the Committee which was more green in colour. The sample of the water so provided along with analysis report of the same as carried out by CPCB is filed before the Hon'ble National Green Tribunal for its perusal.
The residents of the area informed that there was no source of fresh water except the underground water. It was stated that earlier a tube well was constructed on the left side of the highway but had to be closed as the underground water received from the tube well was green in colour.
The total population of village Khanchandpur is reported to be 16 around 1500. The Committee also specifically noted that the surface area of the land of village Khanchandpur on both sides of the highway was more or less similar to the surface area of the dump of the chromium. The underground water which is used and 5 which lies collected in small puddles is used for drinking by animals.
Those who have resources purchase drinking water in 20/50 litre cans everyday. The residents of the area made serious complaints. They stated that the drinking water or underground in the village was contaminated due to leachet from the chromium dump. An old man specifically showed the physical infirmity in his leg to the Committee. He has been photographed. Copy whereof is filed along with the report.
The presence of chromium in the underground water in village Khanchandpur many times the permissible limit is established from the analysis report of CPCB of the samples drawn. Use of such quality of water by human being and animals is dangerous not only to the existing residents but also for the future generations to come. Remedial steps are required to be taken to ensure safe drinking water for the residents of the area as well as for animals.
The Committee was provided a copy of the letter of the State Government dated 02.08.2019 requiring the compliance of the order of the Hon. National Green Tribunal dated 13.07.2017 addressed to the Chief Executing Officer, U.P.S.I.D.A. with reference to DPR which was for removal of chromium dump at Rania. Copy of the said letter is enclosed along with this report.
On behalf of the U.P.S.I.D.A. vide letter dated 20.08.2019 serious objections with regard to the implementation of the proposed temporary measures/remedial measures in respect of the chromium dump at Raniaas suggested in the DPR of M/s ERM India Pvt. Ltd., were raised. The Committee was also shown a copy of the temporary remedial measure as suggested by M/s ERM India Pvt. Ltd., referred to as addendum to DPR letter dated 20.08.2019 along with addendum are enclosed along with the report.
It is surprising that in the temporary measures so suggested there is no mention of the measures to be taken for improving the quality of the underground water and/or the measures required to be taken for ensuring safe drinking water for human beings and animals of the concerned village as well as of the surrounding area of the village concerned.
In the opinion of the Committee the situation at Rania is alarming and needs immediate intervention of Hon. National Green Tribunal.
Status at Rakhi Mandia Rakhi Mandi, Kanpur Nagar the Committee found that the water received from a bore well more than 150 feet deep, constructed inside a petrol pump was green in colour. The Committee was informed that the water received from hand pumps which were earlier used in the area was not portable and was green in colour.17
All such hand pumps have been closed.
Samples of the underground water have been drawn. Analysis report is awaited. The Committee has no hesitation to record that the water at Rakhi Mandia, Kanpur Nagar is also completely unfit for drinking purposes for human being and animals."
6. The following measures have been suggested:
"(a) All hand pumps along with tubewells/borewells installed in the area be sealed and there should be complete prohibition on extraction of underground water for drinking purposes both at village Khanchandpur, Kanpur Dehatand Rakhi Mandi, Kanpur Dehat.
(b) State Government through its Chief Secretary must be directed to ensure supply of drinking water through tankers on day to day basis to the residents of the village Khanchandpur and also to surrounding areas till measures as below are not taken.
(c) Drinking water Sintex tanks be installed in appropriate number at appropriate places in village Khanchandpur for providing potable water within a period of 15 days for the use of the residents of the area. These tanks must be connected to a supply pipe line from a source of potable water within another 7 days and till then the tanks be filled everyday with drinking water through tankers.
(d) The materials which had been purchased for the purpose of Maha Kumbh Melaat Allahabad can be safely used for the above.
(e) Under the Addendum of DPR has to be made available for the purpose transhipment of the dump of the chromium by the State Government."
7. A bottle of water of sample collected on 17/18.09.2019 from Khan Chandpur handpump duly signed by Justice Arun Tandon has also been received which is handed over to Sh. Rajkumar, Advocate for the CPCB. The CPCB may have the same analyzed and furnish its report to this Tribunal with all relevant details before the next date.
8. The above report is self-speaking and paints a grim picture of failure of the authorities in taking remedial measures, forcing the inhabitants to drink polluted water which is a serious hazard to the health. Needless to say that access to potable drinking water is a guaranteed fundamental right and inalienable duty of the State. The State has clearly failed in doing so in the present case. As suggested in the report, it is necessary to require remedial measures to be taken especially with regard to supply of drinking water to the affected inhabitants in the area.
9. The second report relates to Water Pollution by Tanneries at Jajmau, Kanpur. Apart from the fact that incorrect information was given to the Committee appointed by the Tribunal as mentioned in the report, the report shows that vide order dated 08.08.2019, Shri Manoj Kumar Singh, Principal Secretary, Urban Development, UP allowed the Jal Nigam, Kanpur to discharge effluents into River Ganga, 18 pending cleaning of the trunk sewer. Such discharge is still continuing. 43 MLD STP was non-functional and may require one year to be functional. Industrial effluent to the extent of 10-12 MLD received in CETP was being pumped into irrigation canal untreated.
10. Any discharge of pollutants into a water body is prohibited under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and is punishable by imprisonment. We are surprised that the 8 Principal Secretary of the State has permitted such violation of law. The Uttar Pradesh State PCB was bound to initiate action for prosecuting such officer and all those discharging pollutants in River Ganga and failure to do appears to be against the mandate of law.
11. The report refers to two charts furnished by the NMCG handed over to the Committee which are contradictory as follows:
Name of Drain Status with Status with reference to chart reference to dt. 18.08.19 (B) chart dt.
30.08.19 (A)
1. Ranighat 1.89 Tappe Complet Partially (.89 To be MLD d ed tapped MLD) complete d by Aug 2020
2. Sheetla Bazar -do- -do- Partially (4.25 -do- 5.75 MLD tapped MLD)
3. Dhudhia Ghat -do- -do- -do- (5.66 -do-
2.34 MLD MLD)
4. Wazidpur 7.66 -do- -do- -do- (20 MLD) MLD
5. Ganda Nala 55 -do- -do- -do-
MLD
6. Hatwa Khand -do- -do- -do- (5.44 11.44 MLD MLD)
12. The report mentions that while on 17.07.2019, information was given that STPs and CETP at Jajmau and Kanpur were not functional, on 02.09.2019, it was stated that the same were functional. We also note that from the minutes of meeting held on 02.09.2019 in the conference room of the NMCG under the Chairmanship of Justice Arun Tandon:
"Non-compliance to Faecal Coliform standards is unacceptable and Committee advised NMCG and UP Jal Nigam to take immediate steps to achieve the compliance."
It becomes necessary for this Tribunal to intervene for remedial action.
13. Accordingly, we direct:
i. The Chief Secretary, UP, may forthwith ensure steps for supply of drinking water to the residents in the affected area, apart from taking other remedial measures in the light of report of Justice Tandon in respect of Rania, Kanpur Dehat and Rakhi Mandi, Kanpur Nagar, around the area of Chromium dump and earlier orders of this Tribunal.19
ii. The Chief Secretary, UP, may ensure that untreated sewage is not discharged in River Ganga and pending a permanent solution, at least temporary arrangement by way of phytoremediation, bio-remediation or any other technology is done to disinfect/treat water before the same is discharged into the River Ganga.
iii. The Chief Secretary, UP, may initiate necessary action against the Principal Secretary, Urban Development, UP , UP Jal Nigam, State PCB for their illegal action in permitting discharge of untreated sewage and effluents directly into River Ganga.
iv. A compliance report may be filed in the matter within one month by email at [email protected].
v. The CPCB may furnish its report to this Tribunal with all relevant details before the next date.
24. Pursuant to order dated 27.09.2019, UPPCB examined the matter and issued show cause notice dated 24.10.2019 to appellant industry requiring to show cause as to why environmental compensation of Rs.
46,67,80,837.50/- be not imposed for illegal dumping of Chromium waste in village Khan Chandpur, Rania, Kanpur Dehat. 15 days' time was allowed to submit reply but no reply was submitted hence on 19.11.2019, final order was passed, imposing environmental compensation of Rs. 46,67,80,837.50/-. Since industry failed to deposit the said amount, Recovery Certificate dated 18.12.2019 was issued for recovering the amount of environmental compensation as arrears of land revenue. Thereafter, appellant industry approached this Tribunal in OA 20/2020 (supra), contending that no opportunity was granted before imposing environmental compensation though this was an incorrect statement since show cause notice was already issued but appellant industry failed to reply to the said show cause notice and did not disclose this fact to Tribunal; OA was disposed of vide order dated 28.01.2020.
25. UPPCB filed Review Application No. 15/2020, Uttar Pradesh Pollution Control Board vs. Rukmini Chemicals Ltd., stating that 20 appellant has not informed this Tribunal that a show cause notice was issued to it.
26. While review petition was pending, UPPCB gave opportunity of hearing to appellant and, thereafter, order dated 28.05.2020 was passed.
27. Later, review petition filed by UPPCB came up for hearing on 31.07.2020 before Tribunal and was disposed of as infructuous.
28. Parawise reply, given by UPPCB in para 4 of its reply is as under:
"4(i) That the contents of Para 4(i) need no reply.
4(ii) That in reply to the contents of Para 4(ii) it is submitted that consent to establish was granted to Appellant vide order dated 31.08.1996 wherein it was specifically mentioned that Appellant will not start operation without obtaining the consent under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. It will comply with the norms prescribed under Air and Water Act. It has to ensure to obtain authorization under Hazardous Waste Management and Handling Rule, 1989 and to comply with those Rules. It has to ensure the compliance of the provisions of Public Responsibility Insurance Act, 1991 and to prepare and get approved Disaster Management Plan from Director of Industries.
4(iii) That the contents of Para 4(iii) are matter of record, hence need no comments.
4(iv) That in reply to the contents of Para 4(iv) it is submitted that Appellant's unit was closed by the replying Respondent on 07.02.2005 as it was not complying with the environmental norms and Hazardous Waste (Management and Handling) Rules, 1989.
4(v) That in reply the contents of Para 4(v) it is submitted that it was the obligation of Appellant to treat and dispose of the hazardous waste. The society formed by Appellant with other industries did not get environmental clearance, hence treatment facility could not be established. There is nothing on record that the then Member Secretary of the replying Respondent gave any kind of assurance to the Appellant.
4(vi) That the contents of Para 4(vi) are irrelevant for the purpose of the present case.
4(vii) & 4(viii). That the contents of Para 4(vii) and 4(viii) are matter of record and nothing contrary to record is admitted.
4(ix) That the contents of Para 4(ix) are not correct. As stated herein above the report submitted by the monitoring committee presided over 21 by Justice Arun Tondon submitted his report which are registered as O.A. No. 985-986 of 2019.
4(x) That the contents of Para 4(x) are matter of record.
4(xi) That the contents of Para 4(xi) are irrelevant for the purpose of present case. It is submitted that showcause notice itself was clear that the Appellant had to submit their explanation as to why environmental compensation be not imposed on it.
4(xii) That the contents of Para 4(xii) are wrong hence denied. It is submitted that as no reply to the showcause notice was received the replying Respondent has imposed the Environmental Compensation of Rs. 46,67,80,837.50.
4(xiii) That the contents of Para 4(xiii) are irrelevant for the purpose of present case.
4(xiv)&4(xv). That the contents of Paras 4 (xiv) and 4(xv) are matter of record and nothing contrary to record is admitted.
4(xvi). That in reply to the contents of Para 4(xvi) it is submitted that as per the list submitted by Appellant there are only 23 units mentioned in Annexure A-14, out of which 7 industries are shown in Kanpur Dehat, however, industry at Serial No. 19 K.U. Chemicals, Fatehpur Roshnai, Rania, Kanpur Dehat is neither in existence nor the replying Respondent has any record in respect of the said industry. Since the chromium dump has been found in Kanpur Dehat and only 6 units were operating in that area, hence action has been taken against the 6. It is submitted that 8 industries are shown in Kanpur, 7 in Unnao and 1 in Prayagraj. Out of 8 industries shown in Kanpur only 3 were basic chromium sulphate producing industries and were having proper hazardous waste disposal facilities and the rest 5 were not producing basic chromium sulphate as per the record. Out of 7 industries in Unnao only 3 are producing basic chromium sulphate and have proper hazardous waste disposal facilities. Rest 4 industries are not in existence as per the record. There is no proof of disposal of any waste by these units to Khandchandpur, Rania Kanpur Dehat. These units are 50 kilometers away from the concerned site. One unit shown in Prayagraj is 50 kilometers away and having proper waste disposal facility.
4(xvii). That contents of Para 4(xvii) are matter of record. However, it is submitted that recovery notice against the Appellant was issued on 18.12.2019.
4(xviii)&4(xix). That contents of Para 4(xviii)&4(xix) are matter of record and nothing contrary to record is admitted.
4(xx). That in reply to the contents of Para 4(xx) it is submitted that after considering the reply submitted by Appellant order dated 28.05.2020 was passed by imposing environmental compensation.
4(xxi). That the contents of Para 4(xxi) are wrong hence denied.
4(xxii) That the contents of Para 4(xxii) need no reply.22
It is submitted that the compensation for degradation of environment was imposed considering the production capacity of Appellant which was approximately 16.67% of entire waste liability of Rs. 280.01 Crores.
5. That the grounds of challenge are argumentative in nature and will be replied at the time of hearing.
6-7. That the contents of Paras 6-7 need no reply.
8. That the contents of Para 8 are wrong hence denied. The Appellant is not entitled for any relief."
Tribunal's order dated 04.01.2021:
29. Reply filed by UPPCB was considered by Tribunal on 04.01.2021. In its order, Tribunal observed that the request for interim relief by appellant is not acceptable as no case is made out for absolute interim relief. On the question of limitation also, Tribunal observed that Section 15(3) of NGT Act, 2010 is applicable to Tribunal and does not apply to UPPCB. Further, when there is no limitation prescribed, an action must be taken within reasonable time but reasonableness of period would have to be determined from case to case depending on facts and circumstances and public interest in the matter. There is no absolute bar to delayed action in every situation. Inaction by Statutory Regulator like UPPCB should not result in irreversible damage to affected victims. Absolute liability for continuing damage to environment and public health, cannot be ignored and 'Polluter Pays' principle has to be applied even if delay has been caused. Having said so, Tribunal, further in para 4 of the order dated 04.01.2021, said as under:
"4. ....The chromium dump in question at Kanpur Dehat is continuing to cause damage to the environment and the public health. The persons responsible for dumping such hazardous waste, which has contaminated the ground water to the detriment of the inhabitants, cannot disown responsibility for liability for such damage on the ground of inaction of the authorities or closing of the companies. Corporate veil may not be a defence to absolute liability for damage to environment. Of course, the liability of appellants has to be limited to the violations clearly attributable to them. The State PCB must determine such liability specifically, after due opportunity to the appellants, preferably within a period of three months and till this is done, further 23 coercive measures may not be taken. It is made clear that any further proceedings will be subject to further orders.
5. The above observations are for interim relief and are subject to final order after further consideration. Applications for interim relief will stand disposed of accordingly."
30. Hence, vide above order, Tribunal directed UPPCB to determine liability of environmental compensation specifically in respect to this appellant as also other similarly placed before it, after giving due opportunity, preferably within a period of 3 months and till then, no coercive action would be taken.
Tribunal's order dated 24.08.2021:
31. The matter was again taken up by Tribunal on 24.08.2021 wherein contention of appellant was reiterated that order of UPPCB did not indicate specific liability by determining the extent of waste caused by appellant. Tribunal also referred to its earlier order wherein it had directed UPPCB to determine specific liability after due opportunity to appellant within 3 months but unfortunately, despite lapse of 6 months, UPPCB neither passed any order nor submitted any report. Condemning the attitude and approach of UPPCB, Tribunal directed it to finalize the matter on or before 30.09.2021 and file its report. Appellant was also permitted to file objections, if any, to the final order passed by UPPCB in compliance of Tribunal's order dated 04.01.2021.
Report dated 30.09.2021 filed by UPPCB:
32. In purported compliance of Tribunal's order dated 04.01.2021, Member Secretary, UPPCB filed a compliance report dated 30.09.2021. The report has said that in order to give opportunity to the concerned proponents, UPPCB constituted a Committee. RO UPPCB, Kanpur Dehat sent a site inspection report of six industries to Committee on 13.07.2021 stating that during inspection, Chromium waste 1475 MT and 3177 MT 24 was found stored in M/s. Waris Chemicals Pvt. Ltd. Khanchandpur, Rania, Kanpur Dehat and M/s. Hilger Chem Pvt. Ltd., Village-Chiraura Raipur, Kanpur Dehat. Further, on the basis of information supplied by proponents, during course of hearing, further investigations were conducted and 5 more proponents engaged in production of Basic Chrome Sulphate were identified who were also responsible for dumping of Chromium waste over questioned site. Consequently, amount of compensation was reviewed and revised in respect of 11 proponents/units including the present appellant as under:
Sr. Name & Address of Waste Revised
No. industry Quantity Environmental
(MT) Compensation
(in Rs.)
1 M/s Amelia Textiles & 2545.921 114566431
Chemicals Pvt Ltd, 23,
Khanchadpur, Rania, Kanpur
dehat.
2 M/s Cerulean Chemicals Pvt 15275.524 687398586
Ltd, Khanchadpur, Rania,
Kanpur dehat.
3 M/s Chandni chemicals Pvt 4773.601 214812058
Ltd, Khanchandpur rania,
Kanpur dehat.
4 M/s Heilger chem pvt ltd, 6334.125 285035616
vilichiraura raipur, rania,
kanpur dehat.
5 M/s Rukmani Chemicals Pvt 8168.162 367567299
Ltd. Rania, Kanpur dehat
6 M/s Waris Chemicals Pvt Ltd. 7518.382 338327196
Khanchandpur, Rania, Kanpur
dehat
7 M/s Khanna Vivek Chemicals 1230.528 55373775
Pvt. Ltd. C30D, Sitel, Panki,
Kanpur Nagar
8 M/s Unicame India, Village 7637.762 343699293
Malo, GT Road, Chaubepur,
Kanpur Nagar
9 M/s IGS Chemical Pvt Ltd, Plot 1782.144 80196502
No. 211, Bhawanipur
Mandhana, Kanpur Nagar
10 M/s Kaleena Chemicals, Pvt. 3139.969 141298598
Village Malo, GT Road,
Chaubepur, Kanpur Nagar
11 M/s Rahman Industries Ltd, 3818.881 171849646
(Old Name Bharat Chemical
Udhyog)
1002, 1003, Akrampur,
Chakarmpur, Unnao
TOTAL 62225 MT 280,01,25,000
25
33. The above chart shows that the revised compensation determined in respect of the present appellant was reduced to Rs. 36,75,67,299/- for Chromium waste, quantity 8168.162 MT. The above amount and quantity was computed taking total quantity as 62225 MT waste and cost of remediation as Rs. 280,01,25,000/-.
IA 203/2021 with objections filed by appellant:
34. Appellant filed objections along with delay condonation application i.e., IA No. 203/2021 dated 08.11.2021 to the report dated 30.09.2021. It objected report on the ground of delay i.e., the proceedings have been launched after 15 years of closure of the unit, Chromium waste dump existed since 1976 at the questioned site and such long delay cannot be treated as a reasonable time. Appellant placed reliance on Supreme Court's judgment in Shalimar Works Ltd. vs. Their Workmen, AIR 1959 SC 1217 and Chhedi Lal Yadav vs. Hari Kishore Yadav, (2018) 12 SCC 527. Absence of any period of limitation or action taken by UPPCB was contested on the ground that when no time is prescribed, reasonable time should be considered to take action, particularly, when the action causes pre judice which is pleaded by the aggrieved person. It is said that after 15 years of closure of unit, the record is not available and, therefore, reliance on hypothetical production by RO UPPCB, to compute compensation is wholly arbitrary and illegal. It was also pointed out that appellant sold the unit to M/s. Trident Infra Estate Pvt. Ltd. on 06.05.2012 and, therefore, at such a lapse of time, it cannot be held responsible for alleged dumping of Chromium waste between 1976 to 2005, particularly, when UPPCB failed to prove dumping by appellant at all. In this regard, reliance was placed on Supreme Court's judgment in State of Punjab & Others vs Chaman Lal Goyal (1995) 2 SCC 570. It is also said that Regulator has proceeded on the assumption of 'deemed attribution' 26 which is impermissible in law particularly, when appellant had pleaded that it had not dumped its waste outside factory premises and operated only during 1998-2004.
35. Further objections are regarding non-furnishing of adverse material and arbitrary and irrational assessment; appellant stored Chromium waste generated in lined tanks within factory premises and filed an application for disposal of waste likely to be generated in terms of HWMH Rules, 1989 but the said application was not disposed of; appellant has not contributed to Chromium waste dump, of size 62225 MT; basis for such total volumetric assessment of waste of 62225 MT was not provided or disclosed; earlier quantity was assessed as 45000 MT which was increased subsequently to 62225 MT without giving any foundation or basis for such increase; and on assumption basis, appellant cannot be held responsible for dumping of the said waste.
36. It is also said that order dated 15.11.2019 passed in OAs 985- 986/2019 (supra) talked of Chromium dumps and water pollution at two sites i.e., Rania, village Khan Chandpur, Kanpur Dehat and Rakhi Mandi Kanpur Nagar which were in existence since 1976. The aforesaid order also referred to CPCB report dated 30.09.2019 stating that both the contaminated sites located at Khan Chandpur and Rakhi Mandi required remediation of ground water and the damage of Rs. 280 Crores collectively assessed as cost for remediation was in respect of both the areas. Applying the said cost only to the dump found at village Khan Chandpur, is clearly erroneous and shows that some selected units have been singled out and met arbitrary treatment. Appellant has given its details of quantity of chromite ore purchased and production as under:
S. Products Quantity
No.
(i) Chrome Ore consumed between 1997-98 to 1402.59 MT 27 2003-04
(ii) Production of BCS between 1997-98 to 2003-04 1636.350 MT
(iii) Sodium Dichromate between 1997-98 to 2003- 154.018 MT 04
(iv) Sodium Chromate 7.650 MT
(v) Sodium Sulphate 400.455 MT
(vi) Total production of BCS, Sodium 2198.473 MT Dichromate, Sodium Chromate and Sodium Sulphate between 1997-98 to 2003-04
(vii) Chromium waste generated between 1997-98 to 175.323 MT 2003-04
37. It is further stated in the above objections that appellant stored chromium waste generated in the unit in lined tanks within factory premises itself and did not dump it outside the premises; the details furnished by appellant have been ignored by UPPCB officials without any reason and the assessment of 8168.162 MT of waste, attributing to appellant is without any factual basis.
38. Summarizing objections in para 35, appellant has said as under:
"A. Appellant had not dumped chromium waste from its operations in any dump; the waste generated was kept within the factory premises.
B. The premises in question was transferred/taken over in 2009. Appellant had operated only for a period between 1998-2004. It is being unfairly proceeded against for alleged dumping activity since 1976.
C. Entire exercise of determination and apportionment of liability is hit by delay and laches.
D. Appellant stands dissolved and cannot be subjected to liability.
E. Appellant has been held deemed responsible for the pollution caused and liable for compensation payable pursuant to an adjudication to which it was not a party (i.e. OA Nos.985- 986/2019).
F. The underlying materials relying on which there was attribution to Appellant have not been furnished to the Appellant.
G. The assessment and apportionment of liability has been irrational and arbitrary."
Tribunal's order dated 12.11.2021:
39. Report dated 30.09.2021 submitted by UPPCB and objections by 28 appellant were taken into consideration by Tribunal on 12.11.2021. After referring to the revised compensation determined by Statutory Regulator, Tribunal observed that UPPCB has not taken action in terms of earlier order of Tribunal. It was necessary that a specific finding is recorded about attributability of default to particular unit but report does not show such scientific exercise for determining liability. The conclusion fixing liability must be backed by scientific data and record including Form No. 1 and Form No. 13 submitted by concerned units at the time of seeking consent. Stand of the concerned units needed to be duly analysed to ascertain veracity. Delay in filing objections by appellant was condoned and objections were taken on record. Tribunal also said that to the extent liability is admitted in the objections, if any, the same ought to be straightaway enforced, pending further consideration. Consequently, Tribunal directed that let such an exercise be undertaken.
Compliance report dated 28.07.2022 filed on 01.08.2022:
40. Pursuant to the above order dated 12.11.2021, RO (Incharge), Kanpur Dehat submitted a further compliance report dated 28.07.2022 vide e-mail dated 01.08.2022. It is pointed out in the report that 5 additional units were issued show cause notices whereof four had submitted their reply and the fifth one i.e., M/s. Kaleena Chemicals Pvt. Ltd. did not submit any reply. In respect of 2 units namely, M/s. Khanna Vivek Chemicals Pvt. Ltd. and M/s. Unichem India, it was found that they have properly disposed of all generated hazardous waste into common TSDF and no waste was dumped at Khanchandpur Rania, Kanpur Dehat site by the said units. The said units also modified their manufacturing process so that no BCS waste is generated. On the basis of the report and recommendations of RO UPPCB Kanpur Dehat, 29 show cause notices issued to the aforesaid two units were revoked with the approval of Competent Authority, on 14.01.2022. Further, in respect of M/s. IGS Chemicals Pvt. Ltd., Kanpur Nagar, show cause notice dated 29.09.2021 was revoked on 14.04.2022 recording following findings:
"9. ... production was done only from 2003 to 2005 and during that period about 440.695 MT chromium purchased and 881.30 BCS produced and 111.80 MT waste was generated. The waste 111.80 MT has been sent to its sister unit M/s Waris Chemicals Pvt Ltd, Umran, Rania, Kanpur Dehat and safely stored under covered shed. Regional Officer, Kanpur Dehat and Regional Officer, Kanpur Nagar has jointly inspected the unit M/s Wails Chemicals Pvt Ltd, Umran, Rania, Kanpur Dehat for verification of stored waste quantity. Waste about 110 to 115 MT in plastic bags was found stored under covered shed. Regional Officer, Kanpur has recommended for revocation of show cause notice to M/s IGS Chemicals Pvt Ltd. Accordingly, the show cause notice dated 29.09.2021 issued to M/s IGS Chemicals Pvt Ltd has been revoked on 14.04.2022."
41. Compensation was also revised in the light of further facts came to the notice of Committee comprising Mr. Radhey Shyam, Mr. J.P. Maurya, Dr. Anil Kumar Mathur, Environmental Engineers, Lucknow and Mr. Ashutosh Pandey, A.E.E/RO (Incharge), Kanpur Dehat who had submitted report dated 28.07.2022. The findings from para 10 and onwards and revised assessment chart given in the report read as under:
"10. That M/s Rahman Industries Ltd, (Old Name Bharat Chemical Udhyog) 1002, 1003, Akrampur, Chakarmpur, Unnao has also submitted its reply with respect to issued show cause notice. The main content of the reply was that they have purchased the closed unit M/s Bharat Chemical Udhyog, 1002, 1003, Akrampur, Chakarmpur, Unnao in Year 2004. They have taken membership of common TSDF for disposal of hazardous waste since start of production in their unit and have obtained relevant authorization under HWM Rule and relevant consent to operate under Air and Water Act. Their unit is law abiding unit and the actual defaulter was the old unit M/s Bharat Chemical Udhyog, 1002, 1003, Akrampur, Chakarmpur, Unnao which was closed by UPPCB and has also provided the name and address of the owners of the old unit. U.P. Pollution Control Board has directed Regional Officer, Unnao to go through the representation and submit the report, taking into cognizance the direction of Hon'ble NGT while deciding the representation. Regional Officer, Unnao has submitted the report and has confirmed that M/s Rahman Industries Ltd. has purchased the above unit in Year 2004 when the unit was lying closed as per direction of Board. Regional Officer, Unnao has also 30 informed that the unit M/s Rahman Industries Ltd, 1002, 1003, Akrampur, Chakarmpur, Unnao is complying unit. On the basis of recommendation of Regional Officer, Unnao and reply of industry, show cause notice issued against M/s Rahman Industries Ltd, 1002, 1003, Akrampur, Chakarmpur, Unnao has been revoked on 17.01.2022 and fresh show cause notice has been issued against the owners of actual defaulter unit M/s Bharat Chemical Udhyog vide letter dated 17.01.2022.
11. That Regional Officer, Unnao has sent the report dated 13.04.2022 informing that M/s Bharat Chemical Udhyog has submitted representation on 13.04.2022. Applicant has informed that the land has been given on lease to M/s Bharat Chemical Udhyog by Smt. Tarannum Fatima in 1997. As per representation unit was operated for total 567 days and due to infelicitous, industry had stopped production. Thereafter Smt. Tarannum Fatima has sold the industry along with office and Tin Shed to M/s Rahman Export Pvt Ltd, Wajidpur, Jajmau, Kanpur on 28.06.2004. Applicant has submitted the details showing that during production since 01 July 1999 to 31 December 2003, the industry was operated for 567 days and 226.80 MT hazardous waste was generated.
12. That the records available in the Regional Office has been scrutinized and as per office records during January 2001 to March 2001, industry has been operated for total 33 days, which matches with the details submitted by the industry. For rest period, the detail is not available in the office records. As per the inspection report dated 28.08.1999, the hazardous waste generated from the industry is 15 Ton per month. Thus, on the basis of 25 days per month operational period and hazardous waste generation 15 Ton per month, 311.27 MT hazardous waste is generated in 567 days.
13. As per the information submitted by unit, the waste generated in 567 days has been stored in 03 pucca tanks of size 11x7x5 ft-02 Nos. and 13x7x5 ft. The size of first two tanks has been verified through the inspection report dated 15.02.2001 and 07.04.2001. But when the unit was sold to M/s Rahman Exports Pvt. Ltd., neither such storage was found as per the statement of M/s Rahman Exports Pvt Ltd., nor any proof was provided regarding disposal of stored hazardous waste to Common TSDF. So as per recommendations of Regional Officer, Unnao, Environmental Compensation was imposed against the unit for disposal of 311.27 MT chromium waste.
14. All the 05 units, who had gone to Hon'ble Tribunal for filing the appeal, have not given any record regarding Form-1 and Form-13. The inspection report of Regional Officer, Kanpur Dehat/Kanpur Nagar of relevant period shows that the concerned industries have time and again, thrown their generated hazardous waste unscientifically outside their industry premises. The relevant reports are attached as Annexure-1
15. This shows that the concerned industries were definitely responsible for disposal of generated hazardous waste to the chromium dump site. Moreover, this is also a fact that this 31 dumped hazardous waste has impacted the soil due to leachate, which has inturn increased the size of dumped hazardous waste. Finally, the Environmental Compensation against total 08 units responsible for dumping of chromium waste have been imposed on dated 14.04.2022 in the ratio of their production and operation period and details of existing storage of chromium waste inside the industrial premises, which is still not disposed in some units.
Industries could not object on the imposition amount because Environmental Compensation imposed is on true basis and industry did not submit any proof against facts. Imposition of Environmental Compensation is based upon the true facts and on official records in the light of natural justice. On the basis of above facts it is recommended to reject industry representation letter Dated 23/05/2022.
Sr Name & Producti Operational Assessed quantity Revised Revised
. Address of on Period of dumped Assessed Environmental
No Industry capacity Chromium waste as quantity of Compensation
. (MTD) per percentage of dumped (in Rs.)
production. (MT) Chromium
waste after
assessment of
stored quantity
in the
premises. (MT)
1 M/s 4 1990 to उत्पादन क्षिता के आधार 17392.854 87,69,99,345
Cerulean Oct 2005 पर कुल वेस्ट का लगभग
+[28.092*4652/
Chemicals (180 28.092+8.779+4
Pvt Ltd, month) 28.092 प्रततशत (क्रोसियि .682+15.021+5.
Khanchadp वेस्ट 17.392.854 एि.टी.) 774)]=
ur, Rania, 19488.874
Kanpur
dehat.
2. M/s Waris 3.5 1994 to उत्पादन क्षिता के आधार 11329.512- 44,34,53,042
Chemicals Oct 2005 पर कुल वेस्ट का
1475=
Pvt Ltd. NOC 9854.512
Khanchand dated 5- 18.299 प्रततशत (क्रोसियि
pur, Rania, 9-94 (134 वेस्ट लगभग 11329.512
Kanpur month) एि.टी.)
dehat
उद्योग पररिर िें लगभग
1475 एि .टी.
क्रोसियि वेस्ट तनरीक्षण
के ििय भण्डाररत पाया
गया। क्िििे 111.8
एि.टी.
िेििस आई.िी.एि.
केसिकल प्रा.सल. िे ितनत
वेस्ट है।
उमत तथ्य िे स्पष्ट्ट है कक
उद्योग द्वारा लगभग
9854.512 एि .टी.
क्रोसियि वेस्ट को अवैध
रूप िे फेका गया है।
3. M/s 3 1999 to उत्पादन क्षमता के आधार 5435.267+[8.77 27,40,62,295
Chandni Oct 2005 पर कुल वेस्ट का लगभग
9*4652/(28.092
chemicals NOC +8.779+4.682+
Pvt Ltd, dated 12- 8.779 प्रततशत (क्रोसियि 15.021+5.774)]
Khanchand 8-99 (75 वेस्ट लगभग 5435.267 =
pur rania, month) एि.टी.) 6090.273
32
Kanpur
dehat.
4. M/s Amelia 3 2001 to उत्पादन क्षिता के आधार 2898.809+[4.68 14,61,66,557
Textiles & Oct 2005 पर कुल वेस्ट का लगभग
2*4652/(28.092
Chemicals NOC +8.779+4.682+
Pvt Ltd, 23, dated 11- 4.682 प्रततशत (क्रोसियि 15.021+5.774)]
Khanchadp 09-2001 वेस्ट लगभग 2898.809 =
ur, Rania, (40 एि.टी.) 3248.146
Kanpur month)
dehat.
5. M/s Heilger 4 1995 to उत्पादन क्षिता के आधार 11981.744- 39,62,13,484
chem pvt Oct 2005 पर ितनत कुल वेस्ट का
3177=
ltd, (124 8804.744
vilichiraura months) 19.325 प्रततशत लगभग
raipur, 11981.744 एि .टी.
rania, क्रोसियि वेस्ट
kanpur
dehat.
उद्योग पररिर िें लगभग
3177 एि .टी.
क्रोसियि वेस्ट तनरीक्षण के
ििय भण्डाररत पाया
गया।
उमत तथ्य िे स्पष्ट्ट है कक
उद्योग द्वारा लगभग
8804.744 एि .टी.
क्रोसियि वेस्ट को अवैध
रूप िे फेका गया है।
6. M/s 3.5 31-08-96 उत्पादन क्षमता के आधार 9300.346+[15.0 46,89,51,039
Rukmani to Oct पर कुल वेस्ट का 15.021
21*4652/(28.09
Chemicals 2005 2+8.779+4.682
Pvt Ltd. NOC प्रततशत (क्रोसियि वेस्ट +15.021+5.774)
Rania, dated लगभग 9300.346 एि.टी.) ]=
Kanpur 31-08-96 10421.134
dehat (110
month)
7. M/s 2 24-09- उत्पादन क्षिता के आधार 3575.198+[5.77 18,02,72,088
Kaleena 1999 21- पर कुल वेस्ट का 5.774
4*4652/(28.092
Chemicals, 10-2005 +8.779+4.682+
Pvt. Village (74 प्रततशत (क्रोसियि वेस्ट 15.021+5.774)]
Malo, GT months) लगभग 3575.198 एि.टी.) =
Road, 4006.046
Chaubepur,
Kanpur
Nagar
8. M/s Bharat - 567 days उत्पादन के आधार पर 311.270 14,00,71,50
Chemical ितनत क्रोसियि वेस्ट
Udhyog by
Smt. लगभग 311.270 एि.टी.
Tarannum
Fatima
Total 62,225 MT 280,01,25000
"
Name & Production Operational Assessed quantity Revised Revised
Address of capacity Period of dumped Assessed Environmental
Industry (MTD) Chromium waste as quantity of Compensation
per percentage of dumped (in Rs.)
production. (MT) Chromium
waste after
assessment of
stored quantity
in the
premises. (MT)
1 M/s 4 1990 to On the basis of 17392.854 87,69,99,345
Cerulean Oct 2005 production capacity +[28.092*4652/
Chemicals (180 28.092 percent of 28.092+8.779+4
Pvt Ltd, month) total waste .682+15.021+5.
Khanchadp (Chromium waste 774)]=
ur, Rania, 17392.854 MT) 19488.874
33
Kanpur
dehat.
2. M/s Waris 3.5 1994 to On the basis of 11329.512- 44,34,53,042
Chemicals Oct 2005 production capacity 1475=
Pvt Ltd. NOC 18.299 percent of 9854.512
Khanchand dated 5- total waste
pur, Rania, 9-94 (134 (Chromium waste
Kanpur month) 11329.512 Metric
dehat Ton)
In the campus of
industry approx 1475
MT chromium waste
storage has been
found during the
inspection. Out of
which 111.8 MT was
generated by Masers
I.G.s. Chemcial Pvt.
Ltd.
From the above fact it
is clear that almost
9854.512 MT
Chromium waste has
been thrown illegally.
3. M/s 3 1999 to On the basis of 5435.267+[8.77 27,40,62,295
Chandni Oct 2005 production capacity 9*4652/(28.092
chemicals NOC 8.779 percent of total +8.779+4.682+
Pvt Ltd, dated 12- waste (Chromium 15.021+5.774)]
Khanchand 8-99 (75 waste 5435.267 MT) =
pur rania, month) 6090.273
Kanpur
dehat.
4. M/s Amelia 3 2001 to On the basis of 2898.809+[4.68 14,61,66,557
Textiles & Oct 2005 production 2*4652/(28.092
Chemicals NOC capacity4.682 percent +8.779+4.682+
Pvt Ltd, 23, dated 11- of total waste 15.021+5.774)]
Khanchadp 09-2001 (Chromium waste =
ur, Rania, (40 2898.809 MT). 3248.146
Kanpur month)
dehat.
5. M/s Heilger 4 1995 to On the basis of 11981.744- 39,62,13,484
chem pvt Oct 2005 production capacity 3177=
ltd, (124 19.325 percent of total 8804.744
vilichiraura months) waste produced out of
raipur, which approx
rania, 11981.744 MT
kanpur Chromium waste.
dehat.
In the campus of
industry approx 3177
MT chromium waste
storage has been
found during the
inspection.
From the above fact it
is clear that almost
8804.744 MT
Chromium waste has
been thrown illegally.
6. M/s 3.5 31-08-96 On the basis of 9300.346+[15.0 46,89,51,039
Rukmani to Oct production capacity 21*4652/(28.09
Chemicals 2005 15.021 percent of 2+8.779+4.682
Pvt Ltd. NOC total waste +15.021+5.774)
Rania, dated (Chromium waste ]=
Kanpur 31-08-96 9300.346 MT). 10421.134
dehat (110
month)
7. M/s 2 24-09- On the basis of 3575.198+[5.77 18,02,72,088
Kaleena 1999 21- production capacity 4*4652/(28.092
Chemicals, 10-2005 5.774 percent of total +8.779+4.682+
Pvt. Village
34
Malo, GT (74 waste (Chromium 15.021+5.774)]
Road, months) waste 3575.198 MT). =
Chaubepur, 4006.046
Kanpur
Nagar
8. M/s Bharat - 567 days On the basis of 311.270 14,00,71,50
Chemical production Chromium
Udhyog by waste produced
Smt. 311.270 MT).
Tarannum
Fatima
Total 62,225 MT 280,01,25000
(English translation by Tribunal)
42. The above chart shows that environmental compensation in respect to appellant was re-revised to Rs. 46,89,51,039/- on the assessed quantity of waste as 10421.134 MT. This assessment was again made on total quantity of dumped waste taken as 62225 MT and remediation cost as Rs. 280,01,25,000/-.
Documents Appended to Report dated 28.07.2022:
43. There are some documents appended to the report dated 28.07.2022 pertains to various proponents, engaged in production of BCS and were found dumping hazardous waste containing chromium outside the factory premises, unauthorisedly and illegally.
44. One of the documents is dated 29.10.1999 (page 499 of Appeal No. 14/2020) issued by RO UPPCB, stating that instructions were given to the unit in writing as well as orally during inspection on several occasions not to dump chromium waste outside the factory premises but the same directions were not being complied with and hazardous waste continuously being dumped in the nearby area, outside the factory premises and on road site. It was also stated that earlier vide letter dated 07.12.1998, similar directions were also given but the same have not been complied with by the unit and unit has also not taken any consent/authorisation from UPPCB. The contents of the said letter, relevant for the purpose of the present Appeal are reproduced as under: 35
"उपरोक्त का संदर्भ लेना चाहेंगे । आपको उक्त के सम्बन्ध मे कई वार लललित एवं लनरीक्षण के दौरान मौलिक रूप से र्ी हैजार्डसभ वेस्ट (क्रोलमयम युक्त वेस्ट) को उद्योग पररसर से बाहर ककसी र्ी दशा में न डालने तथा ककसी र्ी व्यलक्त को बेचने एवं हस्तगत न करने हेतु लनदेशभ लनदेश के साथ उद्योग पररसर में ही अस्थाई स्टोरे ज व्यवस्था कर एकलित करने हेतु कहा गया है। परन्तु आपके द्वारा हैजार्डसभ वेस्ट -(क्रोलमयम युक्त अपलशष्ट) को आस क्षेि के भ्रमण के समय देि गया पास के क्षेिों मे एवं रोड़ साइड में अनवरत डाला जा रहा है । जैसा कक , लजससे र्ूगर्ीय जल प्रदूलित होने की सम्र्ावना है । इस सम्बन्ध मे आपको इस कायाभलय के पिांकः २४६२/सा-७/९८ कदनांक ०७.१२.९८ द्वारा र्ी लनदेश जारी ककये जा चुके हैं परन्तु आपके द्वारा इस सम्बन्ध मे कोई रूलच न लेते हुये अलधलनयमों का लनरं तर उलंघन ककया जा रहा है आपके द्वारा बोडभ से प्रालधकार एवं सहमलत र्ी नहीं प्रापलत की गयी है।
आपको पुनः लनदेश कदये जाते है कक इधरउधर डाले गये अपलशष्ट को उद्योग पररसर में अस्थाई स्टोरे ज - मे हैजाभर्डस वेस्ट को उद्योग पररसर के व्यवस्था कर एकलित ककया जाये एवं र्लवष्य में ककसी र्ी दशा बाहर न डाला जाये इसका अनुपालन कड़ाई से ककया जाना सुलनलित करें । अन्यथा उद्योग स्वामी के लवरूद्ध जनलहत मे कठोर कायभवाही करने पर बाध्य होना पड़ेगा लजसका समस्त उत्तरदालयत्व आपका होगा।"
"Would like to refer to the above. Several times instructions has been given to you in relation to not put the Hazards Waste (chromium containing waste) outside the industry premises under any condition and not to sell or hand it over to any person along with this you have been asked to collect them by making temporary storage arrangements. But you are continuously dumping the hazardous waste (chromium containing waste) in the surrounding areas and on the road sides. As seen during field visit, there is a possibility of contamination of ground water. In this regard, instructions have also been issued to you through this office's letter no: 2462/Sa- 7/98 dated 07.12.98, but without taking any interest in this regard, you are continuously violating the Acts. Authorization and consent have also not been obtained from the Board.
You are again instructed that the waste dumped here and there should be collected by arranging temporary storage in the industrial premises and in future, in any case, the hazardous waste should not be dumped outside the industrial premises, it should be strictly followed. Otherwise, we will be forced to take strict action against the industry / owner in the public interest, whose entire responsibility will be yours."
45. Letter dated 18.11.2000 (page 500 of Appeal No. 14/2020) is addressed by RO UPPCB to Chief Environmental Engineer (Hazards), UPPCB, Lucknow, making a similar complaint that about 2.5 MT of sludge generated every day was to be stored in a temporary storage i.e., a permanent tank, constructed in the unit but hazardous waste has not been stored in the said tank and instead, is being dumped outside the premises of the unit and on the sites of the highway. Copy of inspection report was also appended to the above letter dated 18.11.2000. It was complained that the unit was violating environmental laws consistently and running without any authorisation, therefore, 36 recommendation was made to take action against the unit under EP Act, 1986 read with HWMT Rules, 1989. The above letter for ready reference is reproduced as under:
"िेवा िें, िुख्य पयासवरण असभयन्ता (है ज़ाडसि) उ०प्र० प्रदष ू ण तनयंत्रण बोडस लखनऊ ।
ददनांक 18-11-2000 ववषय: िेििस रुकिनी केसिकल्ि प्रा० सल०, यू०पी०एि०आई०टी०िी०, औ०क्षे०, िाइड१-, रतनया, कानपुर दे हात के ववरूद्ध पयासवरण िंरक्षण अधधतनयि १९८६ के अन्तगसत अपसशष्ट्ठ (प्रबन्ध एवं हथालन) १९८९ (िंशोधन)-२००० के अन्तगसत ववधधक कायसवाही करने के िम्बन्ध िें । िहोदय, उपरोमत ववषयक उद्योग द्वारा क्रोिाइट ओर, िोडाएश, िल््यूररक एसिड, िीरा का प्रयोग कर बेसिक क्रोि िल्फेट एवं िोडडयि िल्फाइड का उत्पादन ककया िाता है । उद्योग की उत्पादन प्रक्रिया से जतनत िोम युक्त है ज़ार्डस स्लज लगभग २.५ मै0टन / ददन के स्टोरे ज हे तु उद्योग पररसर में अस्थाई भण्र्ारण हे तु पक्के टैं क का तनमाडण क्रकय गया। उद्योग से जतनत खतरनाक प्रकृतत के स्लज को उद्योग पररसर में बने टैं क में भण्र्ारण नह ीं क्रकया जाता है । । उक्त स्लज को उद्योग पररसर के बाहर आस-पास की जमीन एवीं हाइवे के क्रकनारे र्ाला जाता पाया गया (ववस्तृत तनर क्षण आख्या सींलग्न) उद्योग को सींदर्भडत अधधतनयम के अनुपालन करने हे तु इस कायाडलय द्वारा समय- समय पर तनदे श ददये जाते रहे हैं (पत्रों की छाया प्रतत सींलग्न)। उद्योग द्वारा उक्त अधधतनयमों का हमेशा उलींघन क्रकया जाता रहा है । बोर्ड से प्राधधकार प्रपत्र प्रा्त क्रकये िबना ह उद्योग में उत्पादन प्रक्रियाएीं सींचार्लत क्रकया जा रहा है । उपरोमत िंदसभसत उद्योग के ववरुद्ध अपसशष्ट्ठ पदाथस के इधरउधर डालने पर गम्भीर स्थानीय सशकायतें प्राप्त हुई हैं।-
उद्योग की तनरीक्षण आख्या िंलग्न करते हुये उद्योग के ववरुद्ध पयाडवरण सींरक्षण अधधतनयम १९८६ के अधधसूधचत पररसींकटमय तनयमावल १९७९ के अींतगडत पयाडवरण सींरक्षण अधधतनयम १९८६ के सेक्शन-५ में बींद की कायडवाह करने की सींस्तुतत सदहत अधिम आवश्यक कायडवाह हे तु प्रेवित क्रकया जा रहा है ।
िंलग्नकः नं० -१ तनरीक्षण आख्या -
२) उद्योग को प्रेवषत पत्र की छाया प्रतत .1 िे 4) भवदीय (पारि नाथ) क्षेत्रीय अधधकारी "
"To, Chief Environmental Engineer (Hazardous) UP Pollution Control Board Lucknow.
Sub: Regarding taking legal action against M/s Rukmani Chemicals Pvt. Ltd., UPSIDC, O.C., Side-2, Rania, Kanpur Dehat under Environment Protection Act 1986 (Management and Assessment) 1989 (Amendment) - 2000.
Sir, Basic chrome sulphate and sodium sulphide are produced by the above subject industry using chromite ore, soda ash, sulfuric acid, molasses. For the storage of about 2.5 MT/day chrome containing heads sludge generated from the production process of the industry, a concrete tank was constructed for temporary storage in the industry premises. Sludge of 37 hazardous nature generated from the industry is not stored in the tank built in the industrial premises. The said sludge was found to be dumped outside the industrial premises on the surrounding land and on the side of the highway (Viswat inspection report attached). Instructions have been given from time to time by this office to comply with the Act referred to the industry (shadow of letters) copy attached). The said Acts have always been flouted by the industry. Production processes are being conducted in the industry without obtaining the authorization form from the board. Serious local complaints have been received against the above mentioned industry for dumping of waste material here and there.
Enclosing the inspection report of the industry, it is being forwarded for further necessary action along with the recommendation to take action against the industry under the Environment Protection Act, 1986.
Enclosure: No. - 1 Inspection Report
2. Photocopy of the letter sent to the industry (1 to 4) Sincerely (Paras Nath) Regional Officer"
(English Translation by Tribunal)
46. Inspection report dated 17.10.2000 prepared by Shri U.N. Upadhyay, Assistant Environment Engineer and Shri Rajender Prasad, Junior Engineer is appended to the letter dated 18.11.2000 (page 501 of Appeal No. 14/2020) and the contents whereof are reproduced as under:
"उपरोमत ववषयक उद्योग का तनरीक्षण अहस्ताक्षरी द्वारा श्री रािेन्र प्रिाद, अवर असभयन्ता के िाथ ददनांक १७.१०.२००० को ककया गया । तनरीक्षण के ििय उद्योग प्रतततनधध श्री के०के० िैन उपक्स्थत थे। तनरीक्षण के दौरान तनम्नवत ् तथ्य प्रकाश िें आये:
१. उद्योग द्वारा क्रोििाइट ओर, िोडा एश, िल््यूररक एसिश िीरा का प्रयोग कच्चे िाल के रूप िें करते हुये बेसिक प्रोि िल्फेट एवं िोडडयि िल्फेट का उत्पादन ककया िाता है । तनरीक्षण के ििय उद्योग उत्पादनरत पाया गया
२. उद्योग िें िल का प्रयोग घरे लू प्रयोिन एवं उत्पादन प्रकक्रयाओं िें िुख्यतः लीधचंग प्रकक्रया एवं ब्वायलर िें ककया िाता है ।
३. घरे लू उप्रवाह का तनस्तारण िेक्प्टक टैं क /िोक वपट िें ककया िाता है । प्रकक्रया िे ककिी प्रकार काउत्प्रवाह नहीं तनकलता है ।
४ . उद्योग िें कोल फायडस व्वायलर एवं रोक्स्टं ग फरनेश स्थावपत ककया गया है । ईधन के रूप िें कोयला का प्रयोग ककया िाता है । उपरोक्त में वायु प्रदि ू ण तनयींत्रण की व्यवस्था स्थावपत नह ीं है । । उत्िसिन हे तु धचिनी बोडस िानकों के अनुरूप स्थावपत ककया गया है । उत्सडजन नमूना एकत्र करने हे तु मॉतनटररींग ्लेटफामड एवीं पोटड होल स्थावपत नह ीं क्रकया गया है 38 ५ . उद्योग के उत्पादन प्रक्रियाओीं से मुख्यतः िोर्मयमयुक्त स्लज तनकलता है जे लगभग २.५ मै० टन / ददन है । उक्त को न्यूदिलाइजेशन की उधचत व्यवस्था नह ीं स्थावपत क्रकया गया है ।
प्रक्रिया से जतनत िोमयुक्त स्जल को स्टोरे ज करने हे तु उद्योग पररसर के अन्दर अस्थाई भण्र्ारण की व्यवस्था की गयी है । स्लज को उद्योग पररसर में बने टैं क में नह ीं जाता पाया गया । उक्तस्लज को उद्योग पररसर के बाहर हाइवे के क्रकनारे एवीं आस-पास की भूर्म पर र्ाला जाता पाया गया ।
६. इस कायाडलय द्वारा है ज़ार्डस सार्लर् वेस्ट को उद्योग पररसर में बने टैं क में र्ालने हे तु समय-
समय पर तनदे श ददये गये हैं क्रकन्तु उद्योग द्वारा पयाडवरण सींरक्षण अधधतनयम १९८६ के अन्तगडत पररसींकटमय अपर्शष्ठ तनयमावल के प्रावधानों का हमेशा से उल्लींघन क्रकया जा रहा है ।
७. उद्योग द्वारा बोर्ड से सहमतत जल एवीं वायु तथा है जार्डडस प्राधधकार प्रपत्र प्रा्त क्रकये िबना ह उद्योग से उत्प्रवाह का तनस्तारण वायु उत्सडजन एवीं है गार्डस सॉर्लर् वेस्ट का तनस्तारण क्रकया जा रहा है । "
"1. Basic prom sulfate and sodium sulfate are produced by the industry using chromite ore, soda ash, sulfuric acid syrup as raw material. Industry found in production at the time of inspection 2 In industry, water is used for domestic purpose and production processes mainly in leaching process and boilers.
3. Domestic effluent is disposed in septic tank/soak pit. No effluent is generated from the process.
4. Coal fired boiler and roasting furnace has been installed in the industry. Coal is used as fuel. Air pollution control system is not established in the above. The chimney for emission has been installed as per the board standards. Monitoring platform and port hole have not been installed for collection of emission sample.
5. Production processes of the industry mainly generate chromium containing sludge which is about 2.5 MT/day. Proper system for neutralization of the above has not been established. Temporary storage arrangement has been made inside the industrial premises to store the chromic water generated from the process. Sludge was found not to drain into the tank built in the industrial premises. The said sludge was found being dumped outside the industrial premises on the side of the highway and on the surrounding land.
6. Instructions have been given from time to time by this office to put this solid waste in the tank built in the industrial premises, but the provisions of the Hazardous Waste Rules under the Environment Protection Act, 1986 are always being violated by the industry.
7. The industry is disposing of effluents, air emissions and hagards solid waste without obtaining consent from the Board, Water and Air and Hazards authorization form."
(English Translation by Tribunal) 39 Objections of appellant dated 18.08.2022 to the report dated 28.07.2022/01.08.2022:
47. Since these objections have been pressed and argued before Tribunal, we find it appropriate to reproduce the same as under:
"2. At the outset it requires to be mentioned that Appellant is no longer in existence. By way of Gazette Notification dt.03.12.2020, issued pursuant to Public Notice dt.16.09.2020, the Registrar of Companies declared the Appellant company as being struck off the Register of Companies. Consequently, the Appellant stands dissolved under Section 248, Companies Act, 2013. True Copy of the relevant extracts of the Gazette Notification dt.03.12.2020 is annexed herewith as Annexure A.
3. However, without prejudice to the legal position drawing from such dissolution, for the sake of completeness, the erstwhile Director of the Appellant - Kuldip Kumar Jain has preferred the Objections set forth herein, to the UPPCB's Report dated 28.07.2022.
4. It is relevant to note that even before preparation/filing of the Report dt.28.07.2022, the UPPCB had issued a Demand Notice dt.14.04.2022, assessing Appellant's liability as Rs. 46,89,51,039 on the basis of a deemed contribution of chromium waste of 10421.134 MT. Appellant has already filed IA No.128/2022 on 23.05.2022 in the captioned appeal before this Hon'ble Tribunal, challenging the said notice.
5. The Report dt.28.07.2022 filed by the UPPCB appears to be by way of afterthought considering that they had already issued Demand Notice dt.14.04.2022 without any scientific basis and in blatant violation of this Hon'ble Tribunal's Order dt.12.11.2021. The Report deserves to be rejected on this preliminary ground. Without prejudice, and for the sake of completeness, the answering deponent has however furnished the present objections, dealing with the merits of the Report dt.28.07.2022.
6. The UPPCB's Report dated 28.07.2022 contains the following factual assertions:
A. Assessment of contribution of chromium waste is based on the "production capacity of the industry".
B. Pursuant to this Hon'ble Tribunal's Order dt.12.11.2021, the replies of four of the noticees, i.e., Khanna Vivek Chemical Pvt. Ltd. Unichem India, IGS Chemicals Pvt Ltd., Rahman Industries Ltd., were found satisfactory and accordingly, the proceedings against these units were revoked.
C. None of the appellants before the Hon'ble NGT have furnished record of Form-1 and Form 13. The inspection report of Regional Officer, Kanpur Dehat/Kanpur Nagar of relevant period shows that the concerned industries have time and again, thrown their generated hazardous waste unscientifically outside their industry premises. D. Therefore, the concerned industries were responsible for the dumping of hazardous waste and their liability is to be apportioned as per production and operation period. 40
7. On this basis, the UPPCB has entered the following conclusion against the Appellant herein:
Name & address of industry: M/s Rukmani Chemicals Pvt. Ltd.
Rania, Kanpur Dehat
Production capacity (MTD): 3.5
Operational Period: 31.08.96 to Oct. 2005 NOC dated
31.08.96(110 month)
Assessed quantity of About 15.021 percent of total
dumped Chromium waste as waste based on production
per percentage of production capacity (Chromium Waste (MT): 9300.346 MT.
Revised Assessed quantity of 9300.346+[15.021 *4652 dumped Chromium waste after (28.092+8.779+ assessment of stored quantity 4.682+15.021+5.774)]=10421.134 in the premises (M.T.) Revised Environmental 46,89,51,039 Compensation
8. The aforesaid findings and conclusions contained in UPPCB's Report dt.28.07.2022, are incorrect, whimsical, capricious, and arbitrary. In the succeeding paragraphs, Appellant's erstwhile director sets out his objections to the report. Whimsical fluctuating assessments
9. As per the Order dt.28.05.2020 (originally impugned in appeal), the UPPCB declared that that the Appellant was responsible for dumping 10372.9MT and assessed liability thereon as Rs.46,67,80,837. The said assessment was stayed by this Hon'ble Tribunal on 04.01.2021 and the UPPCB thereafter gave Report dt.30.09.2021 stating that the Appellant had dumped 8168.162 MT of chromium waste and must pay Rs.36,75,67,299. Even this assessment was found faulty, as evident from this Hon'ble Tribunal's Order dt.12.11.2021. Now, in the third instance, the UPPCB's Report dt.28.07.2022 has come out with the story that the Appellant is responsible for dumping 10421.134MT of chromium waste and liable to pay Rs.46,89,51,039. For ease of reference, the figures are tabulated below:
Order Report Report dt.28.05.2020 dt.30.09.2021 dt.28.07.2022 10372.9MT 8168.162 MT 10421.134 MT Rs.46,67,80,837 Rs.36,75,67,299 Rs.46,89,51,039
10. In all three instances, there is no scientific or rational basis for calculation. The chromium dumps in question are in existence since 1976 (as recorded by the Hon'ble Tribunal in various judicial orders). Yet, the dump of 62225 metric ton has been sought to be divided only among a few units, including Appellant that operated only between 1998-2004 on the basis of "production capacity".
11. It is relevant that the Order dated 15.11.2019 as passed in OA Nos.985-986/2019 speaks of chromium dumps and water pollution at two sites: (i) Rania, Village Khan Chandpur, District Kanpur Dehat
(ii) Rakhi Mandi, Kanpur Nagar, which have been in existence since 1976. The said order records that the CPCB had filed a report on 30.10.2019 stating that both the contaminated sites located at Khan Chandpur and Rakhi Mandi require remediation of groundwater. The 41 damages of Rs.280 crores (approx.) was apparently assessed as estimated cost for remediation of both areas. However, UPPCB has apportioned the waste only among the units in Kanpur Dehat in each instance.
12. UPPCB has failed to comply with the Order dt.12.11.2021 of this Hon'ble Tribunal.No scientific reasons have been furnished for the determination of quantum of waste and consequent liability. The Report dt.28.07.2022 has made an estimate on the basis of "production capacity", which methodology has not been approved hitherto. The same methodology was hitherto followed by the UPPCB in its Notice dt.28.05.2020, Reply to Appeal dt. NIL November 2020, Report dt.30.09.2021 filed in the captioned appeal. However, the said methodology was not approved by this Hon'ble Tribunal, as would be apparent from the Orders dt.10.07.2020, 04.01.2021 and 12.11.2021.
Unexplained escalation in quantity
13. The total quantity of waste as assessed in the UPPCB Impugned Order dated 28.05.2020, Report dated 30.09.2021 an Report dt.28.07.2022 is 62225 MT. On the contrary, in 2009, as per the intimation of UPPCB itself, the total waste was assessed as 45000 MT. True and Typed Copy of the UPPCB Letter dated 01.04.2009 is annexed herewith as Annexure 'B'. Appellant had objected to the said communication categorically raising the plea that the dump was pre- existing Appellant's operations. True Copy of the Letter dt.10.07.2009 is annexed herewith as Annexure 'C'. The matter was not further actioned. It appears that between 2009 and 2019, the 45000 MT has gone up to 62225 MT as per UPPCB's own inspection. Indisputably, Appellant had shut down in 2004. Therefore, assuming but not conceding Appellant bore any responsibility, it could not be responsible for the escalation in quantity.
14. UPPCB has not disclosed the waste quantity as it stood in 2004. It appears that UPPCB has permitted other establishments/operators to continue with dumping activity beyond 2009 but affixed responsibility thereto to the appellants in the present batch of cases. Arbitrary exclusions of favoured units
15. There were various other entities operating chromium-based units in the concerned area but the UPPCB has found some or the other reason to exempt or absolve such units of liability and conveniently accepted whatever explanation has been provided by other units which were issued show cause notices.
16. In the Report dt.28.07.2022, the UPPCB has given a clean chit to Khanna Vivek Chemical Pvt. Ltd. Unichem India, IGS Chemicals Pvt Ltd., Rahman Industries Ltd., accepting the explanation was furnished by them. For example, in the case of one IGS Chemicals Pvt Ltd., as per the Report dt.28.07.2022, representation was apparently received on 08.04.2022 by UPPCB and on 09.04.2022 itself, UPPCB accepted the explanation furnished. Further, for the 'favoured' units, it appears that UPPCB has accepted the explanation on the basis of "actual production", rather than installed capacity, however, a different yardstick of "installed capacity" or production capacity is adopted for appellants. However, none of the objections nor explanations of the appellants before this Hon'ble Tribunal have 42 found favour with the UPPCB. The UPPCB's slanted and biased approach speaks for itself.
17. The estimated figures (of waste and liability) are for mere convenience of the UPPCB whose only objective appears to be that the total Environmental Compensation of Rs.280.01 Crores has to be divided up among some pre-determined target units (i.e., the Appellants before this Hon'ble Tribunal).
Failure to consider relevant facts pertaining to production
18. The Appellant had consumed limited quantity of chromium ore and generated only limited chromium waste which is nowhere close to the quantity alleged to be dumped. The Appellant had submitted certain details regarding production, including total waste generated between 1998-2004: 175.323 MT (stored inside premises at the relevant time).True Copy of the Table of Production Details and Year-wise Chart of Rukmini Chemicals is annexed herewith as Annexure 'D'.
19. The Appellant's factory premises and machinery was possessed on 25.08.2009 by the UP Finance Corporation under Section 29, State Finance Corporation Act, 1951. Therefore, assuming but not conceding Appellant bore any responsibility, it could have been towards the waste as it stood in 2004, not from 2009 and certainly not in 2019. However, UPPCB has not disclosed the waste quantity as it stood in 2004.
20. It is relevant that this Hon'ble Tribunal had itself taken cognizance of the objections filed, in the Order dt.12.11.2021. However, the Objections dt.08.11.2021 filed before this Hon'ble Tribunal have not been noticed, let alone considered by the UPPCB. Once again, this approach points to the biased and pre-determined mindset of the UPPCB.
Irrelevant documents furnished as "basis"
21. None of the documents filed with the Report dt.28.07.2022 indicate the quantum of waste alleged to be dumped by the Appellant to be anywhere close to 10421.134 MT. The barely legible documents filed (in Hindi) by UPPCB appear to pertain to a period prior to closure of Appellant's unit in 2004. As such, these documents nowhere support the UPPCB's conclusion as to responsibility of the Appellant in dumping to the extent of 10421.134 MT.
22. The basis (i.e., adverse materials) on which the UPPCB has purported to arrive at the quantum of waste and liability have thus not been furnished. The documents furnished bear little or no nexus to the exercise required to be carried out pursuant to this Hon'ble Tribunal's Order dt.12.11.2021.
23. Since the premises of the unit was transferred to a third party a long time ago, the Appellant's Ex-Director had repeatedly corresponded with UPPCB for checking the stored waste within the premises. Translated Copy of the Letters dt.23.04.2022, 25.04.2022 and 09.05.2022 are annexed herewith as Annexure E. UPPCB made correspondence to undertake inspection vide letter dt.09.06.2022 but did not do so, for reasons only known to them. Translated copy of the Letter dt.09.06.2022 of UPPCB is annexed herewith as Annexure F. 43 However, the UPPCB did not undertake the appropriate inspection. Instead, an arbitrary figure of 10421.134 MT has been entered as the contribution of Appellant to the dump.
Improper legal basis for calculation of damages
24. The Report dated 28.07.2022 has relied upon a formula prepared by the CPCP under the Hazardous and other Waste (Management and Transboundary Movement) Rules, 2016 being, "Environmental Compensation (EC) = Q X ERF X R where 'Q' is observed quantity of waste; ERF is environmental risk factor and R is environmental compensation factor @ Rs.30000."
25. This formula, as issued under the 2016 Rules, cannot retrospectively apply qua an alleged violation ending in 2004. Reliance is placed on Rule 1(2) of the 2016 which states that the Rules come into force on the date of their publication in the gazette (which is 04.04.2016). The 2016 Rules or guidelines issued thereunder, being subordinate legislation/executive instructions cannot carry retrospective effect for calculation of damages in respect of alleged dumping upto 2004. Of particular relevance is the 'R' factor taken @ Rs.30000, which benchmark of 2016 would have likely been different if the formulation was to apply for 2004.
26. Assuming but not conceding that the 2016 formula can be applied, the 'Q' factor (quantity of waste) has been incorrectly assessed, as a matter of fact, for the reasons already mentioned above. Going by UPPCB's own Letter of 01.04.2009, the maximum applicable penalty was much lesser with the disposal charge being Rs.1500 per tonne.
Laches
27. The entire exercise is highly belated and hit by laches. The Appellant was non-functional for a very long time. It is now non- existent having been dissolved. It had neither the resources nor materials to defend itself. The very process of requiring the Appellant to defend itself against alleged acts/omissions which relate back to two decades is untenable, hit by delay and laches.
28. The exercise undertaken by the UPPCB was quasi-judicial in nature. It has resulted in a serious civil liability. Even if there is no express provision of limitation for initiation of proceedings of compensation for environmental damage, the proceedings cannot be launched after 15 years of closure of the unit and in respect of dumps in existence since 1976 (well before the incorporation/existence of Appellant). Such proceedings, being quasi-judicial in nature, ought to have been initiated within a reasonable time as held by the Hon'ble Supreme Court in the following cases:
(a) Shalimar Works Ltd. v. Workmen, AIR 1959 SC 1217, which holds that though the Industrial Disputes Act, 1947, does not prescribe limitation for reference of disputes, nonetheless disputes ought to be referred to the tribunal within a reasonable time-frame. Such interpretation was given thought Section 10 of the Industrial Disputes Act in fact permits reference of industrial dispute "at any time". This position reiterated in Prabhakar v. Sericulture Department, (2015) 15 SCC 1.44
(b) Chhedi Lal Yadav v. Hari Kishore Yadav, (2018) 12 SCC 527. A prayer for repossession of land was filed by farmers after a lapse of 24 years in terms of Bihar Kosi Area (Restoration of Lands to Raiyats) Act, 1951. It was contended that the statute a welfare legislation and ought to be read so as to benefit the Raiyat farmers, in matters of delay. It was contended that there was no provision of limitation regarding suo moto exercise of power by the authority for restoration of land. The Supreme Court rejected the contention on the ground that even if there is no limitation against suo moto exercise of power, there cannot be any exercise of power after a long lapse of time. Similar position has been enunciated in Collector v. D. Narsing Rao, (2015 3 SCC 695.
29. Though the Interim Order dated 04.01.2021 of this Hon'ble Tribunal has expressed a prima facie view against the plea of limitation (on the ground that there is absolute liability under the "polluter pays" principle), it is respectfully submitted that even the doctrine of "absolute liability" premised on the "polluter pays" principle does not enable the Pollution Control Board to initiate proceedings for imposition of penalty beyond a reasonable time-frame.
30. For example, Section 15(3) of the NGT Act permits the apex authority in the field of environmental law enforcement - i.e., this Hon'ble Tribunal, to entertain applications for compensation within 5 years of the date of cause of action, as first accrued. This shows that there is no legislative intent to permit an open-ended and indefinite period for assessment/demand of compensation on the doctrine of absolute liability. When such is the case for the apex body, it ought not to be implied that the State Pollution Control Board enjoys unlimited power to impose and assess damages for any length of time.
31. In the interim order dated 04.01.2021, the Hon'ble Tribunal relied on the judgement in Hindustan Times v. UOI, (1998) 2 SCC 242 to observe that limitation is not applicable to the case. However, the aforementioned precedent also takes note of the principle that the defence of delay can be availed where prejudice is pleaded and proved.
32. In the present case, prejudice has been consistently pleaded both before the authority (UPPCB) and this Hon'ble Tribunal. The Appellant's unit was shut in 2004. There was no production for 15+ years. The impugned proceedings of the UPPCB seeks to penalise Appellant for alleged dumping of waste from 1976 for which the UPPCB is not able to produce any record other than rely on hypothetical "production capacity". Petitioner was not even in existence from 1976. The dumps in question admittedly existed since 1976 while the Appellant operated only between 1998-2004. UPPCB has failed to disclose as to the quantity and extent of the dumps as they existed, prior to the operation of the Appellant. Appellant had never dumped any waste outside its premises during the brief period that it was in operation. As the matter is very stale and production has long ceased, Appellant has found it extremely difficult to make its defence on facts. Appellant has been unable to marshall contemporaneous evidence of wrongdoing of other persons/third parties who may have been the actually entities responsible for the 45 dumping in the areas concerned. Such prejudice is irreversible. Appellant relies on the principle enunciated in State of Punjab v. Chaman Lal Goyal, (1995) 2 SCC 570.
33. Furthermore, if any reliance is to be placed on the documents furnished with Report dt.28.07.2022, UPPCB was fully aware more than 15 years ago, of the alleged dumping, if any. It was thus capable of taking appropriate measures against the erring units at the relevant time that the alleged dumping was detected. It is unlawful and belated for UPPCB to levy environmental compensation 15 years after discovery of alleged violation.
34. Appellant's ex-director reiterates all other grounds and submissions hitherto made in the appeal, Objections dt.08.11.2021 filed before this Hon'ble Tribunal to UPPCB Report dt.30.09.2021 and IA No.128/2022 filed in the captioned appeal respect of UPPCB's Demand Notice dt.14.04.2022."
Documents appended with objections of appellant dated 18.08.2022:
48. Annexure-A to the objections is copy of the Gazette of India dated 19.12.2020, containing Registrar of Companies Notification dated 03.12.2020 whereby appellant company was dissolved under Section 248 of Companies Act.
49. Annexure-B is a letter dated 01.04.2009 sent by Member Secretary, UPPCB to Member Secretary, CPCB, stating that six industries including appellant were operating at Kanpur Dehat for last 15 years, dumped their hazardous waste containing Chromium in open ground, size approximately 200 × 100 meter; closure orders were issued to these industries under HWMH Rules, 1989, the units have neither agreed to dispose hazardous waste nor ready to share the expenditure; total hazardous waste as per IITR study report was around 45,000 tones and taking transportation, stabilization and disposal charges in secured land, the total expenditure is worked out to Rs. 6.75 Crores, therefore, a fine of Rs. 1.125 Crores be imposed upon each of the 6 units. The said recommendation was made with request to grant approval under Rule 16(3) of HWMH Rules, 1989.
50. The said notice was opposed and protested by 5 units collectively 46 i.e., M/s. Cerulean Chemicals Pvt. Ltd., M/s. Waris Chemicals Pvt. Ltd., M/s. Hilgers Chemicals Pvt. Ltd., M/s. Chandni Chemicals Pvt. Ltd. and M/s. Amelia Textiles & Chemicals Pvt. Ltd. vide their objections dated 10.07.2009. Copy of the objections dated 10.07.2009 is on record has been filed by appellant as Annexure-C but we find that the said objections were not signed on behalf of appellant's unit. Thus, appellant cannot rely on the said objections.
51. Annexure-D (page 381 of paper book) is a chart prepared by appellant with the title 'Production of Chromium Products, Consumption of Chromium Ore and Generation of Chromium Waste from 1997-98 to 2003-04' and reads as under:
"Production of Chromium products, consumption of Chromite ore and generation of Chromium waste from 1997-98 to 2003-2004 Figures in M.T. Year Sodium Basic Sodium Sodium Total Chromite Chromium Sr. Dichromate Chrome Chromate Sulphate Ore Waste N Sulphate Consumed Generation o.
1. 1997- 37.986 9.000 0.000 16.500 63.486 224.555 161.064 98
2. 1998- 69.582 111.850 7.650 0.000 189.082 356.235 167.153 99
3. 1999- 2.000 131.950 0.000 69.990 203.940 128.485 -75.455 2000
4. 2000- 12.250 138.500 0.000 33.825 184.575 132.600 -51.975 01
5. 2001- 29.200 399.050 0.000 1.100 429.350 336.190 -93.16 02
6. 2002- 1.000 415.900 0.000 122.631 539.531 88.235 -451.296 03
7. 2003- 2.000 430.100 0.000 156.409 588.509 136.290 -452.219 04 154.018 1636.350 7.650 400.455 2198.473 1402.59 175.323
52. In the above chart, appellant has left all columns under head 'Chromium Waste Generation' blank, except last showing total as 175.323 MT. This appears to be deliberate and mischievous. We have filled these columns from Serial No. 1 to 7, by deducting total of manufactured products from chromite ore consumed. Interestingly, our total comes to
-795.888 MT.
47
53. Falsity of the chart filed as annexure D is also evident if we see the figures of the last column chromium waste generations which appellant from serial no. 1 to 7 has left blank and only in the total, he has mentioned it 175.323 MT. We have worked out chromium waste generation from serial no. 1 to 7 and found that at serial no. 1 and 2, chromium waste generation would be 166.064 MT and 167.153 MT which figure we have worked out from the total production deducted by the quantity of chromite ore consumed mentioned in the above chart. Interestingly, from serial no. 3 to 7, the figures comes in negative i.e., -75.455 MT, -51.975 MT, -93.16 MT, -451.296 MT and -452.219 MT respectively. If total of the above figures is taken, it comes to -795.888 MT. It requires no wisdom to see that from the quantity of raw material i.e., chromite ore consumed production can never exceed the total quantity of raw material otherwise it will about to production of more than 100% from the raw material which is improbable. What the figures shown by appellant shows is that total production of various compounds was 758.888 MT more than the total quantity of raw material i.e., chromite ore consumed. This is totally impossible. It is for this reason, again we are certain to reject the above figures disclosed by appellant being patently false, very imaginary and artificial prepared only for the purpose of this case otherwise have no ayota of truth.
54. Annexure-E (page 382 of paper book) is a letter dated 23.04.2022 sent by appellant to District Magistrate, Akbarpur, Kanpur Dehat, informing him that the appellant has informed RO UPPCB through various letters that it has not thrown chromium waste outside factory premises and rather stored it within factory premises. Shri Imran Ali, Assistant Engineer in the office of RO UPPCB, Kanpur Dehat was directed to inspect the unit on 13.07.2021 but he could not inspect and verify the 48 same since physical possession of land, building and plant machinery was taken over by UPFC on 25.08.2009 and later on, sold to somebody else. Hence, it could not be established that dump of generated chromium waste was lying within factory premises. Appellant requested District Magistrate to instruct RO UPPCB to inspect the premises so that appellant may send chromium waste to treatment plant like other units were allowed.
55. To the similar effect is another letter dated 25.04.2022 (page 384 of paper book) which is addressed to Member Secretary, UPPCB, Lucknow and a third letter dated 09.05.2022 (P/386 of paper book) was addressed to RO UPPCB.
56. Annexure-F is a copy of the letter dated 09.06.2022 (P/388 of paper book) sent by RO UPPCB to M/s. Ambika Udyog, informing that as claimed by PP, chromium waste generated was stored in a pucca pit measuring 80 ft × 60 ft × 6 ft within factory premises which could not be lifted at the time the factory premises was auctioned by UPFC and since the said dump of chromium waste is hazardous, therefore, it has to be safely disposed of by sending it to TSDLF. A request was made to the said unit to allow inspection on 16.06.2022 at 12 pm for verification when Mr. K.K. Jain, former Director of the company, would be present. Copy of the said letter was endorsed to District Magistrate, Kanpur Dehat, Chief Environmental Officer, UPPCB, Lucknow, Sub-Divisional Magistrate, Akbarpur, Kanpur Dehat and Mr. K.K. Jain.
ARGUMENTS:
57. Learned Counsel for appellant contended that the unit was closed long back, i.e., since 2004 and after almost 16 years, imposition of liability on the alleged dumping of Chromium waste and assessment of environmental compensation is wholly illegal and barred by limitation. 49 Further, the computation of compensation is arbitrary, imaginary, based on presumption, deemed attribution and is not substantiated by any material; RO UPPCB has computed compensation on the basis of proportional quantity of waste lying at the questioned site since 1976, ignoring the fact that appellant unit commenced its production only in 1998 and stopped in 2004, therefore, apportionment/proportional liability passed upon appellant is patently illegal; compensation has also been determined on the basis of formula prescribed in HOWMTM Rules, 2016 though the aforesaid Rules having been published in Gazette of India, Extraordinary, dated 04.04.2016 and enforced from the date of publication in official Gazette, would not apply to something which transpired between 1999 to 2005; in other words, HOWMTM Rules, 2016 could not have been applied retrospectively in order to determine environmental compensation, liable to be paid by appellant as no retrospective application has been permitted or provided to the said Rules. Learned Counsel for appellant said that appellant did not store or dumped hazardous waste containing Chromium at the questioned site, therefore, no liability could not have been imposed upon it and implication of appellant to hold guilty of violating environmental norms and the provisions of Rules, HWMH Rules, 1989 read with EP Act, 1986 is clearly misconceived and incorrect.
58. On the contrary, Learned Counsel for UPPCB said that the ultimate environmental compensation determined vide report dated 28.07.2022 is based on the production capacity, operational period and assessed quantity of dumped Chromium waste as per percentage of production, therefore, actually based on true facts where against appellant could not produce any material to contradict, hence, no interference is called for. Shri Pradeep Mishra, Learned Counsel appearing for UPPCB strongly supported environmental compensation and liability imposed upon 50 appellant and contended that admittedly appellant was engaged in manufacturing of BCS which resulted in generating hazardous waste containing Chromium and the same having not being disposed of scientifically as required by HWMH Rules, 1989, appellant is liable for payment of compensation by applying the principle of 'Polluter Pays' and since no otherwise material has been placed by appellant before Tribunal, the assessment of compensation by UPPCB is just valid and in accordance with law, hence warrants no interference.
59. It is also argued by Shri Pradeep Mishra that in the impugned order, reference has been made to HOWMTM Rules, 2016 which is apparently incorrect but that by itself will not vitiate the order in as much as mere mention of wrong provision will not vitiate the order if otherwise the power is vested in the authority concerned. He argued that in place of HOWMTM Rules, 2016, the reference may be made to HWMH Rules, 1989. ISSUES:
60. From the arguments advanced by Learned Counsel for the parties as also from material on record and the rival submissions, in our view, following issues have arisen for adjudication by this Tribunal: (I) Whether appellant commenced production in its unit in violation of the provisions of Water Act 1974, Air Act 1981 and HWMH Rules, 1989?
(II) Whether appellant has dumped hazardous waste comprising Chromium on road side or other open place without any lawful authority and thus violated provisions of HWMH Rules, 1989 and also Water Act 1974 and Air Act 1981 by contaminating ground water, soil and air?
51 (III) Whether dumping of waste containing chromium inside the factory premises, if correct, as claimed by appellant, was lawful and valid in the light of HWMH Rules 1989.
(IV) If question I and/or II are/is answered against appellant, what is the quantity of hazardous waste comprising Chromium which has been dumped by appellant illegally and what amount of environmental compensation, appellant is liable to pay, applying principle of 'Polluter Pays'?
(V) Whether imposition or demand of environmental compensation by UPPCB is within limitation or is otherwise not chargeable, by application of principle of laches or unreasonable delay? (VI) Whether determination of environmental compensation by UPPCB against appellant is just valid or liable to be revoked or modified and if so, to what extent?
(VII) Whether appellant has violated any other law and if so, further action required to be taken?
(VIII) Whether appellant is entitled for any relief?
ISSUES I and II:
61. We proceed to consider, first, issues I and II in the light of relevant laws, the facts available on record and also, the arguments advanced by Learned Counsel for the parties.
62. It is admitted case of appellant that it was engaged in manufacturing of BCS as primary product, ancillary products like sodium dichromate, and bye-product like sodium chromate and sodium sulphate. The alleged NOC granted to appellant by UPPCB's letter dated 31.08.1996, is actually a Consent To Establish (hereinafter referred to as 'CTE'). It is for production of only two products namely, sodium dichromate 2.4 MT/day and BCS 4.3 MT/day. No other product as primary product was 52 approved or consented by UPPCB vide CTE dated 31.08.1996.
63. Further admitted case of appellant is that its unit functioned from 09.03.1998 to 31.03.2004 i.e., slightly more than six years. To be more precise, for 6 years and 22 days. Though appellant's production, permitted vide CTE dated 31.08.1996, was about 6.7 MT/day, comprising 4.3 MT/day BCS and 2.4 MT/day sodium dichromate but quantity of raw material required for above production, as per above CTE, was 16 MT/day comprising chromite ore 6.0 MT/day, soda ash 4.0 MT/day and lime stone 6.0 MT/day. Thus, appellant required 16 MT/day raw material for producing 6.7 MT primary product. The residue would comprise 9.3 MT which may include bye-product and waste.
64. Appellant has also claimed that it could actually produce only 1636.350 MT BCS and 154.018 MT sodium dichromate in the aforesaid period of slightly more than six years i.e., from 09.03.1998 to 31.03.2004.
If what has been claimed by appellant and approved vide CTE dated 31.08.1996, is taken into consideration, then, for producing 1790.368 MT of primary products i.e., 1636.350 MT BCS and 154.018 sodium dichromate, appellant would require 4275.50 MT of total raw material. This will lead a total residue of 2485.132 MT comprising bye-products, if any and waste. As per chart filed by appellant as Annexure D, the quantity of bye-products produced is 408.105 MT (7.650 MT Sodium Chromate + 400.455 MT Sodium Sulphide). It leaves quantity of waste as 2077.027 MT. In terms of percentage, the waste and bye-products quantity would be 58.124% and only waste would be 48.57%. The total production shown by the appellant as also the raw material consumed and residue shown do not tally the above ratio/percentage, hence, we find the same to be unreliable.
53
65. No authentic document in this regard has been produced except a chart prepared by appellant's own unit as annexure-D to the objection dated 18.08.2022 which we have demonstrated above of disclosing incorrect picture. There are more ways to show falsity in the above chart. Appellant has shown that the total chromium ore consumed by appellant was 1402.59 MT wherefrom it could extract BCS to the extent of 1636.350 MT i.e., more than 100% which is just improbable. It could not be explained by appellant as to how from a lesser quantity of basic raw material i.e., Chromite ore, a higher quantity of the compound/metal could be extracted. Further, if grossly we take six years period of the functioning, that comes to 2190 days. Taking 25 days a month as working period, it would come to 1800 days (25×72 months) in which, according to appellant, it could manufacture only 1636.350 MT BCS and 154.018 MT sodium dichromate which means 0.90 MT BCS per day against the approved quantity of 4.3 MT/day and 0.085 MT sodium dichromate per day against the approved quantity of 2.4 MT/day. No reason for such a lower quantity has been placed on record and in fact, no authenticated document has been placed on record to justify such poor performance of the unit.
66. We find it also interesting that the appellant claimed to have consumed only 1402.59 MT chromite ore in the entire period of six years but could produce various chromium products i.e., BCS, Sodium dichromate, sodium chromite and sodium sulphate to the extent of 2198.473 MT and also generated 175.323 MT waste and total comes to 2373.796 MT. It could not be disputed that from the extremely lesser quantity of 1402.59 MT chromite ore, the above huge quantify of 2373.796 MT of different products and waste could not have been generated. However, it was sought to be explained with reference to different raw materials approved vide CTE dated 31.08.1996, stating that besides 54 chromite ore, soda ash and limestone was also used and, therefore, their quantity was also to be included. We find that if we include that quantity, the limestone is of the equal quantity of chromite ore, therefore, for 1402.59 MT chromite ore, appellant would have required same quantity i.e., 1402.59 MT limestone. Quantity of soda ash is 2/3rd of the quantity of chromite ore which would come to 935.06 MT. Then total could come to 3740.24 MT. If the total production claimed by appellant is deducted from the total quantity of raw material as computed above, it will come to 1541.767 MT (3740.24-2198.473). It again shows falsity of the figures mentioned in the chart, Annexure D.
67. Therefore, figures disclosed by appellant in the chart, filed as Annexure IV at page 274 of paper book, are apparently false and do not generate any confidence. Hence, we have no hesitation in rejecting the same.
68. In the reply of UPPCB, it has been said that appellant was granted Consent to Establish (hereinafter referred to as 'CTE') vide order dated 31.08.1996 wherein it was specifically mentioned that appellant shall not start commencement/production without obtaining consent under Water act, 1974 and Air Act, 1981 and shall also comply with the provisions of the said Acts and obtain authrisation under HWMH Rules, 1989 and comply with the said Rules. Appellant further was to ensure compliance of the provisions of Public Responsibility Insurance Act, 1991 and to prepare and get approved disaster management plan from Director of industries. However, appellant was not complying with the above laws, hence a closure order was issued on 07.02.2005 and the unit of appellant was closed. The common landfill facility constructed by KPNS, could not function since it could not obtain environmental clearance and there is nothing on record that Member Secretary, UPPCB gave any assurance to 55 the representatives of industrial units who are members of KPNS. Show cause notice was issued to the appellant which he did not reply whereafter environmental compensation of Rs. 46,67,80,837.50/- was computed. Appellant also gave wrong information in as much as the list submitted by appellant as annexure A-14 regarding 23 units contributing to dumping of hazardous waste at the questioned site. It was found that only six industries were functioning in Kanpur Dehat while one unit namely KU Chemicals, Fatehpur Roshnai, Rania, Kanpur Dehat, mentioned at serial no. 19 of the list, was not in existence in Kanpur Dehat. Hence in fact, only six units actually were found in existence and operating in Kanpur Dehat. Rest eight units were in Kanpur, eight in Unnao and one in Prayagraj. There was no question of dumping their waste by transporting it to Rania, Kanpur Dehat and no material was placed to show such dumping by the units situated in different districts and at a long distance. The order dated 28.05.2020 was passed after considering appellant's reply. The above reply submitted by UPPCB shows further incorrect information submitted by appellant. With regard to the violation, the clear allegations are that appellant did not obtain Consent to Operate (hereinafter referred to as 'CTO') under Water Act 1974, Air Act 1981 and authorisation under HWMH Rules, 1989. In respect thereto, nothing has been placed on record to contradict the same. Appellant claimed that its unit was closed on the 31.03.2004 and in this regard, information was communicated to Director of industries vide letter dated 01.04.2009, but this fact has not been admitted by respondent and instead it says that closure order was issued to appellant for violation of environmental laws including HWMH Rules, 1989 on 07.02.2005 pursuant whereto, appellant's unit was closed on 07.02.2005. It could not be explained by appellant as to why no information of closure was furnished to UPPCB if the unit was closed on 31.03.2004.
56
69. CTE dated 31.08.1996 clearly shows that it was issued subject to various terms and conditions mentioned in the said CTE. The relevant conditions no. 3, 4, 9, 10 and 12 of the above CTE are reproduced as under:
"3.उद्योग इकाई से परीक्षण उत्पादन तब तक प्रारम्र् नहीं करें जब तक कक वह बोडभ से जल एवं वायु अलधलनयमों के अन्तगभत सहमलत प्राप्त न कर लें। जल एवं वायु सहमलत प्राप्त करने हेतु इकाई ने उत्पादन प्रारम्र् करने की लतलथ से कम से कम 2 माह पहले लनधाभररत सहमलत आवेदन पिों को उत्पादन पूवभ प्रथम आवेदन का उल्लेि करते हुए इस कायाभलय में अवश्य ही हो जमा कर कदया जाए। यकद उद्योग उपरोक्त का अनुपालन नहीं करता है तो उक्त अलधलनयमों के अवैधालनक प्रालवधानों के अन्तगभत उद्योग के लवरुद्ध लबना ककसी पूवभ सूचना के लवलधक कायभवाही की जा सकती है।
4.उद्योग में परीक्षण उत्पादन के पूवभ हमारे क्षेिीय कायाभलय द्वारा इकाई का लनरीक्षण सुलनयोलजत ककया गया।
9.कच्चे माल का र्ंडारण या तथा प्रयोग पररसंकटमय अलधलनयम 1989 के अंतगभत ककया जाना सुलनलित ककया जाए तथा इसका र्ंडारण बन्द शेड में इस प्रकार जाना सुलनलित ककया जाए लजससे र्ू -गर्भ जल के प्रदूलित होने की संर्ावना न हो । प्रत्येक माह मैटेररयल बैलन्े स र्ी प्रेलित ककया जाना सुलनलित करें ।
10. र्ू - गर्भ जल की गुणता के आंकलन हेतु प्रत्येक छह माह पर र्ू-गर्भ के जल के नमूने को मान्यता प्राप्त प्रयोगशाला से लवश्लेलित कराकर लवश्लेिण आख्या प्रेलित करना सुलनलित ककया जाए।
12. लोक दालयत्व सीमा अलधलनयम 1981 के प्रावधानों का अनुपालन सुलनलित ककया जाए।"
"3. Trial production from industry unit do not start till it obtain consent under the Air Acts. In order to obtain water and air consent, the unit should submit the first pre-production application to this office without fail, mentioning the prescribed consent reference addresses, at least 2 months before the date of commencement of production. If the industry does not comply with the above, legal action can be taken against the industry under the said illegal provisions without any prior notice.
4. Inspection of the unit by our regional office prior to trial production in the industry.
9. Storage of raw materials and its use should be as per Hazardous act in 1989 and its storage should be ensured in closed shed that there is no possibility of contamination of the under ground water. Be sure to send material balance every month.
10. To check the quality of groundwater, send the sample of groundwater at every six month to a recognized laboratory after analysis, analysis report should be submitted.
12. Ensure compliance with the provisions of the Public Liability Insurance Act 1950."
(English Translation by Tribunal) 57
70. The above document clearly shows that this was a NOC for establishment of the unit called CTE and there was a clear condition that before commencement of production, appellant shall obtain CTO under the provisions of Water Act, 1974 and Air Act, 1981. Further, appellant was supposed to ensure compliance of HWMH Rules, 1989. Documents have been placed before this Tribunal along with the report dated 28.07.2022 i.e., letters dated 29.10.1999, 18.11.2000 and inspection report dated 17.10.2000 that appellant was running its unit without consent under Air Act 1981 and Water Act 1974 and authorisation under HWMH Rules, 1989. Nothing has been placed on record along with objections of appellant to the said report that such permission/consent/NOC were obtained at any point of time or at least before commencement of production or even thereafter.
71. From the above, we are satisfied that since very beginning appellant has violated environmental laws and norms in as much as after obtaining CTE on 31.08.1996, it commenced its unit without obtaining CTO and also without obtaining any authorisation for disposal of its hazardous waste under the provisions of HWMH Rules, 1989.
72. At this stage, we may also examine HWMH Rules, 1989 to demonstrate a few more apparent violations by the appellant.
73. HWMH Rules, 1989 were published in Gazette of India, Extraordinary dated 28.07.1989 and came into force on the date of publication in the official Gazette, vide Rule 1(2) of the said Rules.
74. Rule 2 talks of application of HWMH Rules, 1989 and says that Rules shall apply to handling of hazardous waste as specified in the Schedule.
58
75. Rule 3 contains definition of various terms used in HWMH Rules, 1989. For the present case, the definition of terms 'authorisation', 'authorised person', 'hazardous wastes', hazardous wastes site' are relevant and reproduced below as under:
"(c) "authorisation" means permission for collection, reception, treatment, transport, storage and disposal of hazardous wastes, granted by the competent authority in Form 2;
(d) "authorised person" means a person or an organization authorised by the competent authority to collect, treat, transport, store or dispose of hazardous wastes in accordance with the guidelines to be issued by the competent authority from time to time;
(i) "hazardous wastes" means categories of wastes specified in the Schedule;
(j) "hazardous wastes site" means a place for collection, reception, treatment, storage and disposal of hazardous wastes which has been duly approved by the competent authority;"
76. Rule 4 puts responsibility upon the Occupier generating hazardous waste in quantity equal to or exceeding the limits in column 3 of the Schedule to take all practical steps to ensure that such wastes are properly handled and disposed of without any adverse effects which may result from such wastes and the Occupier shall also be responsible for proper collection, reception, treatment, storage and disposal of the wastes either himself or through the operator of facility.
77. Rule 5 talks of authorisation for handling hazardous wastes and also provided procedure for such authorization. Sub-rule 2 of Rule 5 says that every Occupier generating hazardous wastes and having a facility for collection, reception, treatment, transport, storage and disposal of such wastes shall make an application in Form 1 to the State PCB for the grant of authorization for any of the above activities.
78. Rule 7 talks of packaging, labelling and transport of hazardous wastes in a manner suitable for storage and transport. 59
79. Rule 9 talks of records and returns to be maintained by Occupier and Operator of a facility and reads as under:
"9. Records and returns (1) The occupier generating hazardous waste and operator of a facility for collection, reception, treatment, transport, storage and disposal of hazardous waste shall maintain records of such operations in Form 3.
(2) The occupier and operator of a facility shall send annual returns to the 2 [State Pollution Control Board or Committee] in Form 4."
80. It is not disputed before us that wastes comprising Chromium is covered by waste category 3 in Schedule of HWMH Rules, 1989 since chromium is a metal mentioned in the Schedule. The relevant entry reads as under:
SCHEDULE: CATEGORIES OF HAZARDOUS WASTES [Rule 3(i), 3(n) and 4] Waste categories Types of Wastes Regulatory Quantities Waste Category No. Waste containing 10 kilogrammes per 3 water soluble year the sum of the chemical compounds specified substance of lead, copper, Zinc, calculated as pure Chromium, nickel, metal.
selenium, Barium
and antimony
81. Thus from above it is evident that responsibility of occupier for handling of wastes is provided under Rule 4; duties of occupier are prescribed by Rule 4(A) (inserted vide amendment Rules notified vide notification dated 06.01.2000); procedure for grant of authorisation for handling hazardous wastes is provided in Rule 5 and packaging, labelling and transport of hazardous wastes is dealt with vide Rule 7. Procedure for identification of disposal sites for establishing facility for treatment, storage and disposal of hazardous waste is provided Rule 8. Rule 9 talks of record and returns which are to be maintained by occupier generating hazardous wastes and operator of a facility for collection, reception, 60 treatment, transport, storage and disposal of hazardous waste.
82. As per own admission of appellant, it commenced its production after obtaining CTE on 31.08.1996 and on that date or immediately thereafter, within the reasonable time, it had neither obtained any CTO under Water Act 1974 and Air Act 1981 nor obtained authorization in the manner prescribed under Rule 5 of HWMH Rules, 1989.
83. Admittedly, no record as per Rule 9 of HWMH Rules, 1989 has been maintained by appellant and at least none has been placed either before UPPCB or us. It is another violation on the part of appellant.
84. In respect of the documents filed by Joint Committee along with its report dated 28.07.2022, appellant has neither disputed the documents nor the contents thereof. Therefore, we find no reason not to accept the documents dated 29.10.1999, 18.11.2000 and inspection report dated 17.10.2000 and the contents thereof.
85. That being so, not only it is established that appellant has been dumping waste comprising chromium outside the factory premises but has also violated various other provisions of the environmental laws like CTO under Water Act 1974 and Air Act 1981 and authorisation under HWMH Rules, 1989 etc. Therefore, the entire operation of the appellant's unit was apparently illegal and in violation of the mandatory provisions of environmental laws.
86. We may notice at this stage that dumping of waste containing chromium is a very serious violation since chromium is very toxic and its storage at unauthorized site is bound to cause serious damage to environment. To appreciate this aspect, we may examine the nature of Chromium with regard to toxicity and adverse effects, if any, it has on 61 human health and environment.
87. Toxicity of Chromium: Waste containing Chromium is highly toxic liable to cause severe damage to environment in various ways and ultimately health of people at large. This factum about toxicity of chromium metal has also not been disputed before us by Learned Counsel for appellant. It has also come on record that the type of Chromium waste found in the dumped hazardous waste at the questioned site is 'Hexavalent Chromium' i.e., Cr (VI). It is highly toxic and carcinogenic form of Chromium metal. It can enter environment through improper treatment of industrial waste water. Industrial waste lying on open land, by the process of percolation of leachate, contaminates ground water as also soil.
88. In an Article titled as "Toxic and genotoxic effects of hexavalent chromium in environment and its bio-remediation strategies" written by Sandhya Mishra and Ram Naresh Bhargawa, published in the Journal of Environmental Science and Health, Part C volume 34 (2016-Issue I), it is pointed out that Chromium is one of the major inorganic environmental pollutants, which is added in the environment through various natural and anthropogenic activities. It exists mainly in two forms; Cr (III) and Cr (VI). Cr (VI) is considered to be more toxic than Cr (III) due to its high solubility and mobility. It is a very reported occupational carcinogen associated with lung, nasal and sinus cancer.
89. In a Review titled as 'Sources and Toxicity of Hexavalent Chromium' by Rumpa Saha, Rumki Nandi and Bidyut Saha, published in the journal of Coordination Chemistry, Volume 64, (2011-Issue 10), it is said that Chromium exists in oxidation states ranging from −IV to +VI, inclusively.
The compounds exhibit a wide range of geometries including square 62 planar, tetrahedral, octahedral and various distorted geometries. Ore refining, chemical and refractory processing, cement producing plants, automobile brake lining, catalytic converters for automobiles, leather tanneries, and chrome pigments contribute to the atmospheric burden of chromium. Hexavalent chromium i.e., Cr (VI) is known to have 100-fold more toxicity than trivalent Chromium i.e., Cr (III), for both acute and chronic exposures because of its high water solubility and mobility, as well as easy reduction. The respiratory tract is the major target organ for hexavalent chromium following inhalation exposure in humans. Chronic inhalation exposure to hexavalent chromium results in effect on the respiratory tract, with perforations and ulcerations of the septum, bronchitis, decreased pulmonary function, pneumonia and nasal itching and soreness, as reported. Chronic human exposure to high levels of hexavalent chromium by inhalation or oral exposure may produce effects on the liver, kidney, gastrointestinal, and immune systems, and possibly the blood. Dermal exposure to hexavalent chromium may cause contact dermatitis, sensitivity, and ulceration of the skin.
90. In another Research Article titled as 'Chromium Toxicity and its Health Hazards' by Kirti Shekhawat, Sreemoyee Chatterjee and Bhumika Joshi, published in International Journal of Advanced Research in July 2015, it is said that Chromium is one of the major industrial wastes produced from industries like textiles, tanneries, electroplating, metallurgical which causes health issues in humans and animals and also affects marine life. It is most abundant mineral in Earth's crust. Chromium has an atomic number 24 in periodic table and relative atomic mass of 51.996. It occurs in almost all oxidation states ranging from -2 to +6. But in environment, Chromium is mostly stable in trivalent and hexavalent form i.e., Cr (III) and Cr (VI). Chromium which is present in 0 63 oxidation state is biologically inert and is not naturally present in Earth's crust while Cr (III) and Cr (VI) are originated from industries. The available form of Chromium is as halides, oxides and sulphides. It is the +2 oxidation state of chromium which is unstable and can be easily oxidized to +3 forms in the presence of air.
91. According to Indian Standards, maximum tolerance for total chromium in water supplies is 0.05 mg/L. Chromium and its compounds get absorbed in human body through the exposure to oral, dermal and inhalation routes. Cr (III) is less absorbed than Cr (VI) and this leads to a difference in their transport methods to cells. Cr (VI) i.e., Hexavalent Chromium enters into the cell via a non-specific anion channel by facilitated diffusion while Cr (III) enters by passive diffusion or phagocytosis. Human liver, kidney, spleen and bone have more concentration of Chromium in comparison to other organs. Cr (VI) has ability to easily penetrate in RBC. Because of its bio-availability, Cr (VI) enters into RBC and gets converted into Cr (III) which binds to the cellular components and then it is unable to leave RBC. The structure of cells somewhat resembles to the structure of RBC. Due to this, Cr (VI) can be easily up taken by other cells. Also due to oral, intravenous and intra tracheal administration of Cr (VI), its level in tissues increase. Absorption of Cr depends on some factors which are particle's size, oxidation state and its solubility but majorly on the interaction with biomolecules in lungs. The main reduction of Cr (VI) to Cr (III) takes place in tissue of lungs. In respect of Cr (VI), the above research said that it is second stable form of chromium and has a strong oxidizing property. Cr (VI) binds to oxygen and form chromate and dichromate. Cr (VI) has the ability to cross biological membrane and reacts with proteins and nucleic acid. Through feacal test, it is concluded that 10% of the dose is absorbed in 64 gastrointestinal tract. Cr (VI) gets reduced to Cr (III) in lower respiratory tract by pulmonary alveolar macrophages. Cr (VI) enters into blood stream and then taken up by RBC, gets reduced and bound to hemoglobin.
92. Cr (VI) compounds, due to their solubility and reactivity, cause sensitization and allergic reaction. Cr (VI) is an extremely sensitized agent. It can be said in totality that Chromium is responsible for toxic effects in human and it causes allergenicity and carcinogenicity in humans and in animals also. Cr (VI) is mainly responsible for all carcinogenic activity in comparison to Cr (III). With all the toxic effects, there are clear evidence of asthmatic responses sometimes with respiratory exposures. It is responsible for dermatitis allergy; perforation in nasal septum and some cases of lung cancer is also evident. Due to exposure to Chromium, some genetic alteration also takes place which is harmful for human health. Excess of chromium cause patches on skin and lung cancer.
93. Cr (VI) is classified as known 'human carcinogen' by International Agency for Research on Cancer (hereinafter referred to as 'IARC'). The conclusion of IARC is based on evidence in humans that Cr (VI) compound cause cancer of the lungs and positive associations observe with cancer of nose and nasal sinuses.
94. In the Article 'Ecological Risk Assessment of Hexavalent Chromium and Silicon Dioxide in Well Water in Maros Regency, Indonesia' published in Gaceta Sanitaria (Volume 35, Supplement 1, 2021), it is said that Cr (VI) has been classified as carcinogenic compound. Residents exposed to Cr (VI) are confirmed to have digestion, dermatological and hema-tological abnormalities. Heavy concentration of Cr (VI), therefore, is bound to affect health seriously. Heavy metals can pollute wells through movement of ground water and surface water. Leaching processes from top-soil and 65 rock soils are natural sources and play an important role in flow of chromium to ground water.
95. From the above referred research papers and other relevant material available in the public domain, it is well-established that Cr (VI) is considered to be a carcinogen and may cause various diseases to human being when its concentration exceeds permissible limit whether at the top soil or ground water including bore well water.
96. In the present case, toxic waste i.e., the waste comprising Chromium (Cr VI) was found spread about 5 meters on the right side of Kanpur, Jhansi Highway in village Khanchadrapur, District Kanpur Dehat. In the report of Justice Arun Tandon, photographs of dumps are appended. The report also said that the land over which Chromium dump was lying, is either a private land or a land belongs to Gram Sabha. The toxic effects caused due to the aforesaid dumping are also reported in the said report stating that the water coming out from hand pump/bore well was coloured and unfit for drinking; samples were collected from various places within radius of around 150 meters both towards the highway from the dump as well as from the opposite direction; at all places, Committee found that colour of water, sample whereof were taken, was greenish; even water from bore well situate within a factory and more than 150 meter deep was found greenish in colour; the water coming out from hand pumps being used by inhabitants of the locality was also found green in colour; and physical disability generated due to use of contemned water, was also reported in the said report.
97. Thus, it can be concluded that dumping of waste comprising Chromium is highly toxic, dangerous to environment since due to percolation of leachate ground water gets contaminated and when used, it 66 affects human health.
98. The discussion made above shows numerous violation of the environmental laws on the part of appellant i.e.,
(i) No authorisation was obtained under HWMH Rules 1989, therefore, dumping of hazardous waste containing chromium was unauthorized and illegal;
(ii) No CTO under the provisions of Water Act, 1974 and Air Act, 1981 was obtained;
(iii) No record as required under Rule 9 of HWMH Rules, 1989 was obtained;
(iv) Hazardous waste containing chromium was dumped outside the factory premises in illegal manner as a result whereof leachate percolated and contaminated ground water causing health hazardous to the local people;
(v) Since hazardous waste was dumped illegally, Rule 7 of Rules HWMH Rules, 1989 relating to packaging, labeling and transport of hazardous waste was also violated;
(vi) Conditions no. 3,9,10 and 12 of CTE dated 31.08.1996 were violated; and
(vii) Contamination of ground water amounts to contravention of provisions of EP Act, 1986 and provisions with regard to ground water to preservation of ground water.
99. In view of the above discussion, we answer Issues I and II in affirmation and against appellant.
ISSUE III:
100. Appellant has claimed that whatever waste was generated, it was stored inside the factory premises. It is also stated that a very small 67 amount of waste i.e., 175.323 MT was generated and the same was stored inside the factory premises and not outside the factory premises. We have already discussed issue II with regard to dumping of hazardous waste outside the factory premises and recorded findings against appellant. With regard to contention of appellant that it is true that hazardous waste inside the factory premises, no material has been placed before us to support this contention. On the contrary, the documents dated 29.10.1999 and 18.11.2000 as also the inspection report dated 17.10.2000 shows that the authorities of UPPCB found the appellant guilty of dumping of hazardous waste outside the factory premises and warned it repeatedly for such violation. No material has been placed by appellant to show that any point of time, appellant rectified its activities and stored hazardous waste at an authorised site. Further, with regard to the quantity of waste claimed by appellant, we have already discussed above that in the chart annexure D to the objections filed by appellant, the figures of chromium waste generation is patently false and in fact, the figures shown chromium waste generation which is just impossible. In absence of any material in support of the contention of appellant and on the contrary, enough evidence on the record to show otherwise and considering our findings with regard to Issue II, we have no hesitation in returning Issue III in negative i.e., against appellant and held that appellant did not dump waste containing chromium waste inside the factory at any point of time. Even, if it is assumed that appellant actually dumped chromium waste inside the factory premises as claimed by it, the said dumping was patently illegal and unauthorized for the reason that inside the factory premises also, there was no authorized site where hazardous waste material could have been dumped for the reason, appellant had not obtained any authorisation under HWMH Rules, 1989 hence, inside factory premises also dumping if any, would have been illegal 68 and unlawful. We accordingly hold that firstly, appellant did not dump waste containing chromium inside the factory premises and in any case, even this would not have been lawful and valid.
101. Issue III is answered against appellant accordingly. ISSUE IV:
102. In the present appeal, environmental compensation computed by RO UPPCB has been assailed. The compensation has been determined holding appellant liable to pay such compensation applying principle of 'Polluter Pays'.
103. This principle of 'Polluter Pays' was recognized as part of environmental law in India in Indian Council for Enviro-Legal Action vs. Union of India, (1996)3SCC212. Certain industries producing assets were dumping their waste and 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 Director Principle of State Policy and 51-A in the Fundamental duties of citizens, Supreme Court observed that said provisions say that State shall endeavor to protect and improve environment and to safeguard the forest and wildlife of the country. One of the fundamental duties of citizen says to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creature. Proponent has established to operate its commercial unit contrary to law flouting norms provided by law, Statutory Regulator is bound to act and if it 69 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)1SCC395, 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. Court also referred to its earlier decision in Indian Council for Enviro Legal action vs. Union of India (1995)3SCC77, wherein 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 to 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 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 70 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."
104. Court further said that according to the above principle of 'Polluter Pays', responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 of EP Act, 1986 empower Central Government to give directions and take measures for giving effect to this principle. It further said as under:
"...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 Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit."
105. The above principle has been followed in Vellore Citizen Welfare Forum vs. Union of India, 1996(5)SCC647. In para 25, direction no. 2 reads as under:
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 71 authority shall lay down just and fair procedure for completing the exercise.
106. In Bittu Sehgal and Another vs Union of India & Others (2001)9SCC181, referring the earlier judgments, Supreme Court has said that precautionary principle and 'Polluter Pays' principle have been accepted as part of the law of the land.
107. In Research Foundation for Science vs. Union of India & Others (2005)13SCC186, in para 26 and 29, Court, on 'Polluter Pays' Principle, has 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 and extent of cost and the circumstances in which the principle will apply may differ from case to case.
108. In Karnataka Industrial Areas Development Board vs. C. Kenchappa & Others (2006)6SCC371, principle of 'Polluter Pays' has been explained in detail referring to the earlier judgments in Indian Council for Enviro-Legal Action vs. Union of India (supra) and Vellore Citizen Welfare Forum (supra).
109. Applying the above principle of 'Polluter Pays', it thus cannot be doubted that the appellant, having dumped hazardous waste containing chromium (Cr VI) at the questioned site and thereby causing damage to 72 environment and also affecting local people's health, is liable for restoration of the damage caused to environment and to bear its cost. Appellant thus has to pay environmental compensation.
110. Now the question is, what should be the cost or environmental compensation. In other words, how much environmental computation is payable by appellant. Environmental compensation shall have the element of damage to environment, cost of remediation, deterrent factor and other relevant aspects.
111. Issue of determination of environmental compensation is significant in the sense that it should be proportionate to or bears reasonable nexus with the environmental damage and its remediation/restoration.
112. Taking into consideration multifarious situations relating to violation of environmental laws vis-a-vis different proponents, nature of cases involving violation of environmental laws can be categorized as under:
(i) Where Project/Activities are carried out without obtaining requisite statutory permissions/consents/clearances/NOC etc., affecting environment and ecology. For example, EC Management Rules, 2016 and other Rules; and NOC for extraction and use of ground water, Environment Impact Assessment Notification 2006; Consent under Water Act, 1974 and Air Act, 1981; Authorisation under Solid Waste Management Rules, wherever applicable, and similar requirements under other statutes.
(ii) Where proponents have violated conditions imposed under statutory Permissions, Consents, Clearances, NOC etc. affecting environment and ecology.
(iii) Where Proponents have carried out their activities causing damage 73 to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc.
113. The above categories are further sub-divided, i.e., where the polluters/violators are corporate bodies/organisations/associations and group of the people, in contradistinction, to individuals; and another category, the individuals themselves responsible for such pollution.
114. Further category among above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc.
115. The next relevant aspect is, whether damage to environment is irreversible, permanent or is capable of wholly or partially restoration/remediation.
116. Determination/computation/assessment of environmental compensation must, not only conform the requirement of restoration/remediation but should also take care of damage caused to the environment, to the community, if any, and should also be preventive, deterrent and to some extent, must have an element of "being punitive". The idea is not only for restoration/remediation or to mitigate damage/loss to environment, but also to discourage people/proponents from indulging in the activities or carrying out their affairs in such a manner so as to cause damage/loss to environment.
117. To impose appropriate 'environmental compensation' for causing harm to environment, besides other relevant factors as pointed out, one has to understand the kind and nature of 'Harmness cost'. This includes risk assessment. The concept of risk assessment will include human health risk assessment and ecological risk assessment. U.S. 74 Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people. For the purpose of human- health risk assessment, it comprised of three broad steps, namely, planning and problem formulation; effects and exposure assessment and risk categorization. The first part involves participation of stakeholders and others to get input; in the second aspect health effect of hazardous substances as well as likelihood and level of exposure to the pollutant are examined and the third step involves integration of effects and exposure assessment to determine risk.
118. Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities. Here also we can find answer following three major steps, i.e., problem codification; analysis of exposure and risk characterization. First part encompasses identification of risk and what needs to be protected. Second step insists upon crystallization of factors that are exposed, degree to exposure and whether exposure is likely or not to cause adverse ecological effects. Third step comprised of two components, i.e., risk assessment and risk description.
119. In totality, problem is multi-fold and multi-angular. Solution is not straight but involves various shades and nuances and vary from case to case. Even Internationally, there is no thumb-rule to make assessment of damage and loss caused to environment due to activities carried out individually or collectively by the people, and for remediation/restoration. Different considerations are applicable and have been applied.
120. Nature is extremely precious. It is difficult to price elements of nature like light, oxygen (air), water in different forms like rain, snow, vapour etc. When nature is exploited beyond its carrying capacity, results are harmful and dangerous. People do not understand the value of what 75 nature has given free. Recently in Covid-19 wave II, scarcity of oxygen proved its worth. In dreadful second phase of the above pandemic, any amount offered, in some cases, could not save life for want of oxygen. Further, damage to environment, sometimes do not reflect in individuals immediately and may take time but injury is there. In such cases, process of determination of compensation may be different. In an article, 'the cost of pollution-Environmental Economics' by Linas Cekanavicius, 2011, it has been suggested, where commercial activities have been carried out without consent etc., and pollution standards have been violated, Total Pollution Cost (hereinafter referred to as 'TPC') can be applied. It combines the cost of abatement of environment pollution and cost of pollution induced environmental damage. The formula comes to TPC(z)=AC(z)+ED(z), where z denotes the pollution level. Further, clean-up cost/remediation cost of pollution estimated to be incurred by authorities can also be used to determine environmental compensation. When there is collective violation, sometimes the issue arose about apportionment of cost. Where more than one violator is indulged, apportionment may not be equal since user's respective capacity to produce waste, contribution of different categories to overall costs etc. would be relevant. The element of economic benefit to company resulting from violation is also an important aspect to be considered, otherwise observations of Supreme Court that the amount of environmental compensation must be deterrent, will become obliterated. Article 14 of the Constitution says that unequal cannot be treated equally.
121. Determination/assessment/computation of environmental compensation cannot be arbitrary. It must be founded on some objective and intelligible considerations and criteria. Simultaneously, Supreme Court also said that its calculations must be based on a principle which is 76 simple and can be applied easily. In other words, it can be said that wherever Court finds it appropriate, expert's assessment can be sought but sometimes experts also go by their own convictions and belief and fail to take into account judicial precedents which have advanced cause of environment by applying the principles of 'sustainable development', 'precautionary approach' and 'Polluter Pays' etc.
122. Clean-up cost or TPC, may be a relevant factor to evaluate damage, but in the diverse conditions as available in this Country, no single factor or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to polluter/violator and though there is some element of subjectivity but broadly assessment/computation must be founded on objective considerations. Appropriate compensation must be determined to cover not only the aspect of violation of law on the part of polluter/violator but also damage to the environment, its remediation/restoration, loss to the community at large and other relevant factors like deterrence, element of penalty etc.
123. Rules for handling, storage, management, etc. of hazardous waste were initially framed in 1989 which were superseded by Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 published vide MoEF notification dated 24.09.2008 in the Gazette of India, Extraordinary of the same date and again, Hazardous Waste Rules, 2008 were superseded by HOWMTM Rules, 2016. However, in the above Rules, there was no mechanism provided for determination/assessment of environmental compensation for violation of the aforesaid Rules. This was a serious gap and noticed by this Tribunal in OA 804/2017 (Earlier OA 36/2012), Rajiv Narayan & Another vs. Union of India & Others. Vide order dated 12.04.2019, directions were issued to CPCB to determine, 77 within one month, the scale of compensation to be recovered in violation of the Rules. Pursuant thereto, CPCB in May 2019, issued guidelines titled as 'Determination of Environmental Compensation to be recovered for violation of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016'. Reference of HOWMTM Rules, 2016 was given in the guidelines of May 2019 since only those Rules were in operation at the time of issue of the guidelines but in effect, the guidelines provided mechanism of determination of environmental compensation for violation of the Rules pertaining to handling, storage, transport etc. of hazardous waste. In respect of the circumstances applicable in the present case, the formula prescribed therein is as under:
Environmental Compensation = ERF × Q × R
124. Here Q is Quantity of hazardous or other waste which has not been managed with the provisions of environmental laws and norms; ERF is Environmental Risk Factor and R is Environmental Compensation Factor of Rupees.
125. Value of ERF applicable in the present case is 1.5 and R is Rs. 30,000/- as is evident from notice dated 24.10.2019, issued by RO UPPCB to appellant.
126. Value of Q i.e., quantity has to be determined after considering the relevant facts, applicable and available on record, in the present case.
127. Learned Counsel for appellant has said that the aforesaid formula was prescribed by HOWMTM Rules, 2016 and, therefore, would not apply to the transactions of the period between 1999 to 2005. However, we do not find that any such formula, for computation of environmental compensation, has been prescribed in HOWMTM Rules, 2016. The submission is not supported by documents. While we agree with the 78 appellant's counsel's submission that HOWMTM Rules 2016 would not apply in this case, we do not find anything in the said rules to show that the above formula is part of the said rules. The above formula is part of guidelines issued by CPCB in May 2019. Since, at that time, HWMH Rules, 1989 were already superseded, therefore, reference in the guidelines is given to the then operating HOWMTM Rules, 2016 but in substance, the guidelines are for the purpose of laying down norms and a uniform criteria for assessment and computation of environmental compensation due to violation of the provisions pertaining to collection, treatment, transportation, storage, disposal and management of hazardous waste. Therefore, in substance, the same would be applicable to any set of Rules which deals with the said subject.
128. It is also contended that value of R, prescribed as Rs. 30,000/- per ton, by CPCB, is very recent, hence it cannot be applied to appellant as such and instead value of R should be taken with corresponding reduction as it ought to be in 1999-2005. In our view, since damage is continuing, the present value of R can safely and justifiably be applied in the present case. Appellant has committed a crime under EP Act 1986, Water Act 1974 and Air Act 1981 by dumping hazardous waste at questioned site and took no steps for its removal. It has violated law. The dumped waste has continuously remained lied at the questioned site till date and causing damage to environment continuously. Responsibility of appellant to scientifically dispose of hazardous waste is continuous. Now appellant cannot be allowed to take advantage of its own wrong. It is not open to appellant to contend that since UPPCB has failed to take remedial steps in time hence lapse of time should contribute to his advantage. Appellant has failed in observing its statutory obligations and such failure is continuing till date hence appellant has to bear cost which in presenti may 79 be borne by Statutory Regulator. We, therefore, reject the otherwise submission advanced on behalf of appellant.
129. In fact, CPCB guidelines providing the above formula are not under challenge in the Appeal. Though, we find that the guidelines have been held in some other cases, by this Tribunal, as providing meagre amount as value of R but in the present case, since it is an Appeal and the order of RO UPPCB is under challenge, we are examining the validity of the formula applied by RO UPPCB based on guidelines of CPCB and would not go to examine correctness of the guidelines of the formula prescribed by CPCB since it is not under challenge by appellant before us.
130. Determination of Quantity of Waste Dumped by Appellant: For the purpose of determination of the quantity of waste dumped by appellant, we have already discussed that the information supplied by appellant that it generated only 175.323 MT of waste, is apparently incorrect, unreliable and self-contradictory to the entire chart filed at page 274 of the paper book. We have already observed that if the total production was 2198.473 MT, the waste generation could not have been 175.323 MT. In respect of other industries including appellant, the learned Counsel who is representing all the five industries including the present appellant, has stated at the bar that for production of 3 MT of BCS, the generation of waste comprising chrome would be about 1.5 MT i.e., half of the quantity of BCS manufacturing. In the present case, appellant's approved quantity of BCS, as per CTE dated 31.08.1996 is 4.3 MT/day and 2.4 MT/day is sodium dichromate. In the letter dated 18.11.2000 (page 500) sent by RO UPPCB to Chief Engineer Environment Officer, UPPCB, with respect to present appellant, it is said that daily generation of hazardous waste is about 2.5 MT which is slightly more than half of the total quantity of BCS approved for manufacturing vide CTE dated 80 31.08.1996. Respondents have taken the quantity of waste by taking into consideration production capacity of appellant vis-a-vis total quantity of waste found stored at the questioned site i.e., 62225 MT and, thereby, have computed the contribution of appellant to the hazardous waste as 16.67%. It has taken the same percentage of Rs. 280,10,25,000/-, the cost of remediation. This approach adopted in the impugned order dated 28.05.2020 cannot be approved. The same has been followed in the report dated 30.09.2021 though since the number of units increased from six to eleven, therefore, the proportionate contribution of appellant has been divided in eleven units and thereby the waste quantity has been computed as 8168.162 MT and the environmental compensation was computed as Rs. 36,75,67,299/-. This approach also, in our view, cannot be approved.
131. Since dumping of hazardous waste at the questioned site as admitted by respondent, commenced sometimes in 1976, therefore, for a unit which commenced its operation in 1998, the earlier dumping of hazardous waste could not have been attributed and no responsibility could have been placed in respect thereto. This approach on the part of respondent is apparently illegal and wholly arbitrary.
132. Unfortunately, same approach has been followed in report dated 28.07.2022 though since number of units taking into consideration have now come to eight, therefore, the proportionate contribution stood altered accordingly to 15.021%. The computation of the quantity of waste as 10421.134 MT and computation of compensation as Rs. 46,89,51,039/- cannot be accepted.
133. Learned Counsel on behalf of respondent-UPPCB could not explain as to how the entire quantity of waste lying at village Khanchandpur i.e., 62225 MT, can be attributed to the appellant and seven other units when 81 as per the own admission of the respondent, dumping of waste relates back to 1976 and the above units were not even in existence. To treat the appellant and other units, responsible for contributing to the entire quantity of waste lying at the questioned site which has grown gradually starting from 1976 and onwards and cannot be attributed to the appellant in any case as admittedly, appellant's unit commenced its establishment when CTE dated 31.08.1996 was issued and commenced its production on 09.03.1998, date disclosed by appellant, contrary whereto no other material has been placed before us by respondent. Respondents have calculated the period of functioning of the unit from the date CTE was issued but the Learned Counsel for respondent could not dispute that the process of establishment of unit commenced after CTE is issued by UPPCB, therefore, on the date when CTE was issued, it is not possible that the factory would start running since it was not in a position to run at that point of time. We find no reason to accept the date of commencement of the unit as 09.03.1998 given by appellant and approach of respondent otherwise cannot accepted. For all these reasons, we find that computation of environmental compensation by RO UPPCB on all the three occasions i.e., in the order dated 28.05.2020 was passed as also in the subsequent reports dated 30.09.2021 and 28.07.2022 cannot be upheld.
134. Now the situation is that the approach followed by respondent, is not correct and simultaneously, appellant has also not given the correct facts and figures though onus lies on the appellant to show the figures which were in its possession and it has complete knowledge in respect thereof but it has failed to do so. Appellant has not even applied for Authorisation under HWMH Rules 1989 hence neither Form I nor Form 13 is available. An adverse inference therefore, must be drawn. We find, therefore, appropriate to follow practical, objective and more apt data and 82 figure in this case.
135. It is not in dispute that the approved quantity of production was 4.3 MT of BCS and 2.4 MT sodium dichromate. If we go by the number of working days, as admitted by appellant, i.e., from 09.03.1998 to 31.03.2004, it will come to six years i.e., 72 months and 23 days i.e., 2213. Giving benefit of non-functional days/holidays of the unit, i.e., one day a week, taking 25 working days in a month, total would come to 1817 days. Taking a middle path in the matter, accepting appellant's statement that it could not function to its optimum for some reasons, we take that the unit must have worked at least with 50% of the approved production. Total production of BCS and sodium dichromate in 1817 days would be as follows:
Sl Product Quantity
No.
1 BCS 3906.55 MT(4.3÷2×1817)
2 Sodium dichromate 2180.4 MT (2.4÷2×1817)
3 Total production of BCS and 6086.95 MT
sodium dichromate
136. If the generation of hazardous waste comprising chromium is taken to be 50% of the production, the quantity of hazardous waste could come to 3043.475 MT (50% of 6086.95 MT).
137. The amount of environmental compensation, applying formula i.e., EC = Q × ERF × R, discussed above, would be 3043.475 × 1.5 × 30000 = 13,69,56,375/-.
138. We do not find any other way to compute quantity of hazardous waste generated and dumped by appellant for the reason that the information with regard to production and purchase of material disclosed by appellant, as we have already discussed, is totally false and there is no other material available on record except the quantity of production and 83 raw material approved by UPPCB and the number of days, the unit run by the appellant. Since the above information is available and that can be used for determination of quantity of hazardous waste objectively, therefore, in the interest of justice, we have taken the above authentic figure and given the maximum leverage/consideration to the interest of appellant in order to arrive at the ultimate quantity of hazardous waste generated and dumped by appellant at the questioned site. In this way, we have also met the contention of the appellant that quantity of waste could not have been determined with respect to the total quantity of waste found stored at the questioned site i.e., 62225 MT and also the total cost of remediation calculated by UPPCB i.e., about Rs. 280 Crores and both these figures have been left for consideration by us and instead, we have computed the quantity of waste on the basis of the information disclosed by appellant i.e., the approved production and quantity of raw material as accepted by UPPCB as also the period for which appellant's unit actually functioned. Therefore, substantial objections raised by appellant also stand negated from the manner in which we have proceeded to determine quantity of waste.
139. We also express our disapproval to the manner in which environmental compensation has been determined by RO UPPCB, Kanpur Dehat. On the one hand, it has applied the formula of EC=Q x ERF x R but for determining the value of Q, it has not considered the contribution of appellant as such but taking total quantity of dumped waste at questioned site as 62225 MT, it has divided the same by taking appellant's production capacity of 3 MT/ton in proportionate to other unit's production capacity and on that basis, has arrived at the quantity of waste differently on all the three occasions.
140. Learned Counsel for UPPCB did not dispute that the total quantity 84 of waste collected at the questioned site reflected the period of 1976 and onwards but admittedly, appellant commenced its production only in August 1999, therefore, for the waste dumped at the questioned site prior to August 1999, no liability could have been fastened upon the appellant. In a mechanical manner, entire quantity of 62225 MT has been divided proportionately between six units initially and thereafter, eleven units and then eight units respectively. We express our strongest disapproval to the manner in which RO UPPCB has acted in this case. Determination of environmental compensation is a serious matter and must be discharged impartially, objectively and on relevant material. Whimsical, capricious or arbitrary computation of environmental compensation is nothing but gross abuse of process of law and power. We have no hesitation in observing that in this particular case there is a complete failure on the part of Statutory Regulator and in particular, RO UPPCB in discharge of its duties for implementation of environmental laws. The units including appellant's commenced business operations by running their units without requisite clearances/consents but officials of UPPCB failed to check them and no action punitive or otherwise was taken to prevent such illegal functioning. Second, fact of dumping of hazardous waste comprising chromium came to the notice of concerned RO UPPCB long back and within short period of commencement of production by appellant's unit, still except of sending letters and notices, no effective, preventive, punitive and remedial action was taken. It is only when this Tribunal came across the information about such massive violation of environmental laws and norms and contamination of ground water affecting health of local people and issued directions for remedial action, the concerned Statutory Regulator has acted/reacted but that too in very perfunctory, casual and negligent manner. We condemn and disapprove such conduct and functioning of officials of UPPCB and direct Competent Authority to take appropriate 85 action against erring officials in accordance with law.
141. We accordingly, answer Issue IV and determine quantity of hazardous waste dumped outside the premises by appellant and also amount of environmental compensation accordingly. ISSUE V:
142. The major objection taken by appellant against imposition and demand of environmental compensation is on the ground of limitation. It is contended that appellant's unit actually functioned between 09.03.1998 to 31.03.2004 but during that period, no compensation was imposed upon it. For the first time, demand of environmental compensation was raised by RO UPPCB vide order dated 19.11.2019 whereagainst appellant approached this Tribunal in OA 20/2020 (supra) which was disposed of on 28.01.2020. Pursuant to Tribunal's order dated 28.01.2020, appellant submitted a representation dated 05.02.2020 whereafter order dated 28.05.2020 was passed maintaining environmental compensation of Rs. 46,67,80,837.50/-. Against this order, present Appeal was filed. During pendency of the Appeal, quantum of environmental compensation was re- visited by RO UPPCB and in the report dated 30.09.2021, revised environmental compensation is computed as Rs.36,75,67,299/-. Tribunal in its order dated 12.11.2021 found that the re-determined compensation is not in accordance with Tribunal's order in as much as no specific finding was recorded about attributability of default to particular unit and report did not show scientific exercise for determining liability. Pursuant to Tribunal's order dated 12.11.2021, another compliance report dated 28.07.2022 was filed and environmental compensation was re-revised to Rs. 46,89,51,039/-. On three occasions, three different amount of environmental compensation has been determined which itself shows total non-application of mind on the part of the concerned authority i.e., RO 86 UPPCB due to non availability of record after such lapse of time.
143. In any case, it is contended that after closure of the unit on 07.02.2005, environmental compensation determined in November 2019, i.e., after more than 14 years is per se barred by limitation and in any case, it is impermissible having been demanded after lapse of extraordinary length of time. If no period of limitation is prescribed under Statute for computation of environmental compensation by application of 'Polluter Pays' principle by Statutory Regulator, the law provides that power should be exercised within reasonable time and such reasonable time cannot be stretched or expanded to more than 14 years. Due to lapse of long time, imposition of environmental compensation upon appellant is vitiated and liable to be set aside.
144. Learned Counsel appearing on behalf of appellant did not dispute that for exercise of power of imposition of environmental compensation by RO UPPCB, no period of limitation is prescribed under any Statute. In these circumstances, it has to be examined whether lapse of almost one and a half decade in computation and demand of environmental compensation from appellant would vitiate the demand or not. In this regard, we may first examine the authorities relied by appellant in support of the above argument.
145. First judgment of Supreme Court relied in this regard is, Shalimar Works Ltd. vs. Workmen (supra). The matter had arisen before a three Judges' Bench of Supreme Court in the proceedings, arising under Industrial Disputes Act, 1947. There were certain disputes between the workmen and employer namely M/s. Shalimar Works Limited. The workmen raised an industrial dispute which was referred to Industrial Tribunal (Sixth) for adjudication by Govt. of West Bengal. On the matter of 87 profit sharing bonus and reinstatement of 250 workmen, Industrial Tribunal gave its award whereagainst both the parties filed appeal before Labour Appellate Tribunal. Appellate Tribunal did not interfere with the award of Industrial Tribunal and dismissed Appeal with one modification namely, by adding that, if in any year, it was found that bonus worked out according to award of Industrial Tribunal was less than profit bonus, calculated according to Full Bench formula evolved in Miss-Owners' Association, Bombay vs. The Rashtriya Mill Mazdoor Sangh, Bombay 1950 L.L.J. 1247F, workmen would be entitled to bonus under the formula; otherwise they would get bonus under the scheme as modified by Industrial Tribunal. Against order of Appellate Tribunal, employer filed Civil Appeals Nos. 317/1950 while the workmen filed Civil Appeal No. 318/1950 before Supreme Court. On the question of bonus, parties agreed that revision made by Industrial Tribunal should be accepted and the condition laid down by Appellate Tribunal should be deleted. Accordingly on the issue of bonus, Supreme Court upheld Industrial Tribunal and modification made by Appellate Tribunal was set aside. The relevant part of judgment in para 8 reads as under:
"8. ...In view of this agreed statement, we delete the condition laid down by the Appellate Tribunal and order that bonus should be paid in accordance with the scheme as revised by the Industrial Tribunal. Learned counsel for the workmen, however, urged that the condition as to minimum attendance of 100 days for entitlement to any bonus at all and of minimum attendance of 275 days for entitlement to full bonus was arbitrary and should be set aside. This condition has been accepted by both the Tribunals and appears reasonable and we see no reason to interfere. It was further contended that bonus for the years 1951 and 1952 should have been ordered to be paid according to the revised scheme. This contention was also negatived by the two Tribunals and we see no reason to differ from them. The two appeals therefore with respect to bonus are dismissed subject to the modification given above."
146. Now coming to the issue with respect to reinstatement of 250 old workmen, on this aspect, Supreme Court referred to the factual 88 background of the issue stating that a Major Engineering Tribunal was set up by Government of West Bengal in October 1947 to decide disputes between major engineering firms and their workmen; Shalimar Works Ltd. as well as workmen were parties to the disputes which was pending before that Tribunal; the issues before Tribunal were of a very comprehensive nature and included all kinds of disputes that could arise between employers and employees; while that adjudication was pending, workmen suddenly pressed certain demands upon the company for immediate solution without awaiting the award of Tribunal, even though the demands so put forward were under adjudication; company naturally refused to meet the demands when they were under investigation by Tribunal; consequently, the workmen who had come to work on 23.03.1948, started a sit-down strike after they had entered the company's premises; this strike continued from March 23 to 27 and it was on March 27 that workmen were ejected from the premises by the police according to the case of the company or were induced to leave the premises by the police according to the case of the workmen; anyhow, after the workmen left the premises on 27th, the company gave notice on that day that the Works would be closed indefinitely; another notice was given by the company on 06.04.1948, in which it was notified that all those who had resorted to illegal strike from 23.03.1948, would be deemed to have been discharged from that date; thereafter, no work was done till 15.05.1948; on that date, the company gave a notice that if sufficient suitable men apply for employment on or before May 19, the works would be opened on a limited scale from May 20; it seems, however, that nothing came out of this notice; eventually on July 5, the company gave another notice to the effect that the works would re-open on 06.07.1948 and all old employees could apply, and if re-engaged their past services would be counted and their conditions of service would be as awarded by Major Engineering Tribunal, which, it 89 seems, had given its award in the meantime; it was also said in the notice that upto July 21, the company would only consider engagement of former employees and no fresh labour would be recruited till that date; thereafter, majority of old workmen applied for being retaken in service and everyone who applied upto July 21 was re-engaged; thereafter, company refused to re-engage the old employees, a few of whom are said to have applied in November and December 1948, August 1951, February 1952 and January 1953.
147. Appellate Tribunal found that that a list was carelessly prepared in as much as some names were repeated; against some serial number, there were neither names nor ticket numbers; Industrial Tribunal ordered reinstatement without specifying who were to be reinstated; it really did not know who were the persons to be reinstated; in fact, what Tribunal did was to order the company that identity of the workmen to be reinstated might be established to give a general notice on its notice-board notifying the strikers to come and join their duties on a fixed date and to reinstate whichever striker applied within the time allowed.
148. Appellate Tribunal on the issue of reinstatement of 250 old workmen, criticized the award of Industrial Tribunal observing that direction of reinstatement was vague and highly objectionable. Appellate Tribunal also came to the conclusion that identity of 115 workmen had been established, 100 out of them had withdrawn their provident fund and these 100 accepted the order of discharge since they withdrew provident fund and hence no relief could be granted to them. With regard to remaining 15 workmen, Appellate Tribunal found that they had not withdrawn their provident fund, therefore, for their reinstatement also, Appellate Tribunal issued directions. However, Appellate Tribunal also ordered that no compensation could be allowed to the workmen for the 90 period between their discharge and their reinstatement because of the delay on their part in asking for redressal. The company argued before Supreme Court that both Tribunal found the sit-down strike un-justified, hence company was entitled to discharge the workmen. Further, discharge took place in 1948 and company re-opened in July 1948 but the reference of industrial dispute was made after four years without list of the workmen said to have been discharged, hence reference was not proper. On behalf of the workmen, it was argued that since industrial dispute was pending between company and workmen, the workmen could not have been discharged without obtaining permission of Tribunal under Section 33 of Industrial Disputes Act, 1947. Since discharge notice dated 06.04.1948 was given without obtaining sanction of Tribunal, it was breach of Section 33 and, therefore, workmen were entitled to reinstatement. The above arguments were dealt with by Supreme Court and it observed that on 06.04.1948 when company discharged its workmen, a dispute was already pending and thus, there was breach of Section 33. However, remedy for such breach was provided under Section 33-A which could be availed by an individual workman but they did not avail the said remedy individually or collectively. Some letters were written to Assistant Labour Commissioner in November 1949 i.e., after almost one and a half year from the date of discharge. After writing those letters, again workmen remained silent/inactive for almost further 3 years while reference was made on 07.10.1952. In this backdrop, Supreme Court said:
"13. ...It is true that there is no limitation prescribed for reference of disputes to an industrial tribunal; even so it is only reasonable that disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale, as in this case. The industry has to carry on and if for any reason there has been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. We are 91 of opinion that in this particular case the dispute was not referred for adjudication within a reasonable time as it was sent to the Industrial Tribunal more than four years after even re-employment of most of the old workmen..."
149. Supreme Court, therefore, gave 3 reasons for denying relief of reinstatement to workmen i.e.,
(i) Remedy under Section 33-A was not availed by the workmen within a reasonable time after discharge on 06.04.1948;
(ii) Order of discharge was passed after illegal and unjustified sit-
down strike; and
(iii) The reference was made after an unreasonable length of time and in a vague manner.
150. This is evident from the following extract of the judgment:
"13. ...In the circumstances there was no reason for ordering reinstatement of any one on such a vague reference after such an unreasonable length of time. The defect in the order of discharge of April 6, due to permission not having been obtained under s. 33 can in the circumstances of this case be ignored on the ground that the workmen who did not re-join in July 1948, were not interested in reinstatement : firstly, on account of the circumstances in which that order came to be made after an illegal and unjustified sit-down strike, secondly, because the workmen in their turn did not avail themselves of the remedy under s. 33-A which was open to them, and thirdly, because the reference was made after an unreasonable length of time and in a vague manner. We are therefore of opinion that the Appellate Tribunal should not have ordered the reinstatement of even the fifteen workmen in the circumstances as their case was exactly the same as the case of the hundred workmen, except in the matter of the withdrawal of the provident fund."
151. It is thus, evident from the above judgment that lapse of 4 years' time in making reference in the peculiar facts of the case, was taken as a ground to deny relief of reinstatement to the workmen and the above judgment has been rendered in the particular facts of the case before Supreme Court.
152. The next authority relied by appellant is Chhedi Lal Yadav vs. Hari Kishore Yadav (supra). In this case, suit land was sold in execution of 92 rent decree on 13.08.1942. The land in execution was purchased by one Babu Md. Abdus Samad and, thereafter, changed hands four times. In 1951, State of Bihar enacted the Act i.e., Bihar Kosi Area (Restoration of Lands to Raiyats) Act, 1951 (hereinafter referred to as 'Bihar Act, 1951'). It provided for restoration of certain lands to farmers i.e., raiyats which were sold for arrears of rent or from which they were ejected for arrears of land between 1st day of January 1939 and 31st day of December 1950. This was operational due to floods in Kosi River which made agricultural operations impossible. Appellant Chhedi Lal Yadav did not take any steps for restoration of land till 04.05.1975 on which date one Gonar Yadav, son of Chanchal Yadav (recorded tenant) filed a petition for restoration of disputed land under Section 3 of Bihar Act, 1951. Eventually, after an earlier remand, when the matter was pending in appeal being Appeals No. 540/1978-1979, it was dismissed in default on 07.09.1980. It was again restored on 23.12.1980 but again dismissed for default on 23.03.1983. Application for restoration was moved after 16 years on 09.08.1999 and was allowed without notice to respondents. Ultimately, Additional Collector on 27.12.2000 allowed restoration of the disputed land in favour of appellant. Respondents filed a writ petition which was dismissed by Learned Single Judge of Patna High Court on 25.03.2004 whereagainst letter patent appeal was preferred by respondents which was allowed. This judgment was appealed before Supreme Court by the appellant who was denied restoration of land. Supreme Court observed that after passing of Bihar Act, 1951, the petition for restoration of disputed land was filed on 04.05.1975 i.e., after a period of 24 years. Thereafter, when appeal was dismissed on 23.08.1983, appellant applied for restoration on 09.08.1999 i.e., after a period of 16 years of such dismissal. Appellant, therefore, was found guilty of inordinate, unexplained and unjustified delay, firstly, in making application for restoration of land after a period of 24 years after 93 such a right is said to have accrued to appellant and then in making an application for restoration after a further period of 16 years when the matter was dismissed in default.
153. In this backdrop, Supreme Court considered the arguments advanced on behalf of appellant that delay must be over-looked since Bihar Act, 1951 was beneficial piece of legislation intended to bring relief to farmers who had been dispossessed during the proscribed period. It was observed by Supreme Court that it is a settled law where the Statute does not provide for a period of limitation, the provisions of the statute must be invoked within a reasonable time. Now what reasonable time would be was sought to be explained by referring to the term 'reasonable time', explained in Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, where the term 'reasonable time' is explained as under:
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer."
154. After referring the term 'reasonable time' as explained in Advanced Law Lexicon, Court said that the time must be reckoned reasonably, not only in order to preserve rights and advantages, a party possesses, but equally to protect each party from the losses he ought not to suffer. Whether an action has been taken within a reasonable time, must also be viewed from the point of the view of the party who might suffer losses. Applying the said reasonable time to the facts of the case before Supreme Court, it was observed that auction sale took place in 1942 and application for restoration of land was first made in 1975; appeal was dismissed for default in 1983 and, thereafter, 16 years were taken in filing application; in the meantime, disputed land changed hand twice. The long-settled position thus, could only be upset for some very compelling reason and on making out an extremely strong case. Consequently, Supreme Court also 94 negated the arguments advanced on behalf of appellant and in para 13 said:
"13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute..."
155. Supreme Court also referred to the facts of the case before it and said that action is grossly delayed and taken beyond reasonable time, particularly, when the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights. Court said that merely because legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay.
156. The above judgment very categorically state that what reasonable time is, it has to be decided in the circumstances of each case and purpose of the statute and not to be applied mechanically.
157. In State of Punjab & Ors. vs. Chaman Lal Goyal (supra), dispute relates to service matter. Chaman Lal Goyal (hereinafter referred to as 'writ petitioner') was Superintendent of Nabha High Security Jail in 1986. On his transfer from the said post, he gave charge of his office on 26.12.1986. On the night intervening 1/2-January, 1987 certain inmates, said to be terrorists, made an attempt to escape. In that connection, two of the inmates attempted to escape and one jail official died in the shooting which took place. Six terrorists made good their escape. Inspector General of Prisons immediately inspected prison and submitted report to State Government on 09.01.1987. He reported inter-alia that the incident was cumulative result of lax administration, indiscipline and lack of control over the prisoners. He also reported that the writ petitioner, Chaman Lal 95 Goyal followed the policy of appeasement towards the extremists; he yielded to each and every illegal demand of the extremists as a result detenu Gurdev Singh assumed leadership of the prison population and dictated terms to the administration; there was a total breakdown of the classification of the inmates in the different wards of the jail etc. Inspector General recommended that Deputy Superintendent Shri Surinder Singh and Superintendent Jail, Shri Chaman Lal Goyal responsible for the loose administration and laxity be placed under suspension. Another enquiry was ordered by District Magistrate which was conducted by Sub-Divisional Magistrate but in his report submitted to District Magistrate on 26.01.1987, Sub-Divisional Magistrate did not make any observations or comments for or against the writ petitioner. No action was taken against Chaman Lal Goyal until 1992 and he continued in service. For the first time, he was called to the office of Secretary to Home Department on 25.03.1992 and, thereafter, served a memo of charges on 09.07.1992. Writ petitioner submitted explanation on 04.01.1993 denying charges. After obtaining comments of Inspector General of Prisons, Government appointed an enquiry officer on 20.07.1993. Immediately, thereafter, writ petitioner filed writ petition before High Court on 24.08.1993, seeking quashing of charges and orders appointing the enquiry officer. The writ petition was allowed vide judgment dated 25.08.1994 and High Court quashed memo of charges as well as order appointing enquiry officer. Supreme Court examined the judgment of High Court which was based on two findings firstly that writ petition was exonerated by Sub-Divisional Magistrate and secondly, on the ground of delay. Supreme Court found that the findings with regard to exoneration by Sub-Divisional Magistrate was nothing but a factual error. So far as delay is concerned, in para 9 of the judgment, Court observed that though there was a delay of 5 and a half years in serving the charges but in every case, such delay is not fatal. 96 It all depends on the facts of the given case. The Court said, "9. ...The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the fact-, of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing..."
158. Judgment of High Court was accordingly set aside by allowing Appeal by Supreme Court.
159. Now, in the present case, we have to examine the above law whether applicable to the facts situation to present case and if so, to what extent. It is no doubt true that from 2000 and onwards, officials of UPPCB visited appellant premises, found violation with regard to dumping of hazardous waste which appellant was dumping in the nearby open area outside the factory premises. A closure notice was also issued lastly on 07.02.2005 but no compensation was determined. The serious damage caused by hazardous waste dumped at the questioned site was reported in the report of Justice Arun Tandon, former Judge stating that ground water had got contaminated and health of the people in the area is also severely affected. The said reports dated 25.09.2019 and 26.09.2019 were submitted by the Committee comprising Justice Arun Tandon, former Judge and the said Committee was appointed by Tribunal's order dated 06.08.2018 passed in OA 200/2014 (supra). Prior thereto, hazardous effects and consequences in the area, were not detected. Evil effects came into light only by virtue of the aforesaid report. The above report also 97 brought to the notice of this Tribunal that Statutory Regulators have not discharged their duties properly and appropriate punitive and remedial actions were not taken against the polluters, compelling this Tribunal to pass an order directing the authorities to take appropriate action in accordance with law. It is argued that under Sections 14 and 15, there is a limitation prescribed within which Tribunal can exercise its powers under NGT Act, 2010 and when something could not have been done by Tribunal under the aforesaid provision, it could not have directed the authorities to exercise their powers travelling beyond period of limitation prescribed under Sections 14 and 15 of NGT Act, 2010. However, when confronted, Learned Counsel for appellant could not dispute that provisions of Sections 14 and 15 prescribed thereunder is not extended or applicable to the Statutory Regulators who exercise their powers under Water Act, 1974, Air Act of 1981 and EP Act, 1986.
160. The question of limitation or reasonable time has also to be examined in light of nature of the Statue i.e., statues relating to environment; right if any, possessed by the appellant, with regard to dumping of hazardous waste in open land and causing pollution and affecting health of people at large and whether any right, if possessed by appellant, has vested in itself which should not be divested after long time. Answer to the above question is that no one has any right to dump hazardous waste containing harmful metal or material causing damage to environment and similarly, no one has any right, constitutional, legal or otherwise, to cause pollution and thereby, damage not only to environment but also health the people at large.
161. Protection of environment has been held to be a pious duty of the mankind as propounded in our ancient scriptures going back to several thousands years.
98
162. Vedas are universally accepted to be a most precious Indian heritage. They have knowledge of all types. The main vedic views revolve around the concept of nature and life. There are several references on environmental conservation, ecological balance and weather cycle which indicates high level of awareness of the people of the ancient people in respect of environment and ecology. Vedas attach great importance to environmental protection and purity. They persist on safeguarding the habitation, proper afforestation and non-pollution. Man is forbidden from exploiting nature. He is taught to live in harmony with nature and recognize that divinity prevails in all elements, including plants and animals. A verse from Rig Veda says, "Thousands and hundreds of years if you want to enjoy the fruits and happiness of life then take up systematic planting of trees.".
163. At that time, the term 'pollution' was not there but the learned ancestors and sages in ancient scriptures call it 'poisoning of environment'. They believed that five elements (space, air, fire, water and earth) which constitute environment, are all derived from prakriti, the primal energy and our human body is composed of these and related to these five elements and connects each of the elements to one of five senses. Human nose is related to earth, tongue to water, eyes to fire, skin to air and ears to space. This bond between our senses and the elements is foundation of our human relationship with the natural world. Vedas stress the need for protection and development of forests. Human beings have to safeguard the trees. People in vedic times regarded nature and environment in a holistic manner and revered each of its constituents and entities by carefully preserving them. In Rig Veda, verse 6:48:17 says, "Do not harm the environment; do not harm the water and the flora; earth is my mother, I am her son; may the waters remain fresh, do not harm the waters; 99
"do not cut trees, because they remove pollution.". In Yajur Veda, verse 5:43 says, "Do not disturb the sky and do not pollute the atmosphere.".
Similar references, we find in Upnishads and other Purans as also the epic literature like Ramayana, Mahabharata and Bhagavad Gita. Kautilya's Arthasastra discloses lot of knowledge about environment and its conservation. For protection of trees, there was recommendation of Superintendent of Forest Produce and prohibition of certain kinds of trees, violation whereof was punishable. Certain forests were declared protected calling 'Abhayaranya' and heavy penalties and capital punishment were prescribed for offenders in Arthasastra.
164. Presently, protection of environment is global issue and not an isolated problem of an area or a nation. However, in India consciousness about protection of environment is so important that wide interpretation has been given to Article 21 of the Constitution by interpretating Right to Life to include right to live in a wholesome environment (Subhash Kumar vs. State of Bihar and Others AIR 1991 SC 420); pollution free environment (Charan Lal Sahu vs. Union of India, (1991)SCC613); the right to enjoyment of pollution free air and fresh water (Narmada Bachao Andolan vs. Union of India, (2010)10SCC644); a clean environment (Vellore Citizen Welfare Forum vs. Union of India (1996)5SCC647) and a decent environment (Shantistar Builders vs. Narayan Khimalal Gotame & Others (1990)1SCC520). In Rural Litigation and Entitlement Kendra vs. State of UP (1985)2SCC431, it was held that right to live in pollution free and healthy environment also includes right to live in a healthy environment with minimal disturbance of ecological balance. In Virender Gaur & Others vs. State of Haryana & Others 1994 SUPPL. (6) SCR 78, it was held that live in atmosphere congenial to human existence is a Fundamental right to life under Article 21. 100
165. The extension of right to life to various spans by judicial interpretation by Supreme Court of India has been appreciated recently by Irish Supreme Court in Friends of the Irish Environment vs. Ireland, 2017 JR 793 (IR) wherein Irish Supreme Court for the purpose of Ireland declined to acknowledge the constitutional right to environment but observed that India is the only exception in the common law family to interpret the constitutional right to environment without an expressed constitutional provision. Irish Court referred to David R Boyd's detailed study titled as "The Environmental Right Revolution: A Global Study of Constitutions, Human Rights, and the Environment" and observed that most of the States where constitutional right to environment was adopted has been achieved by including such wording in the Constitution and not too expensive and direct interpretation. However, in the environmental context, Indian Supreme Court, as long back in 1980 in Municipal Council Ratlam vs. Vardhichand, AIR 1980SC1622, held that decency and dignity are non-negotiable facets of human rights and the contamination breach such human rights which were reflected as Fundamental Right under the Indian Constitution. Court directed Municipal Council to remedy the lack of sanitary facilities and issued 5 directions in this regard such as construction and management of drainage system, stopping polluted effluents, seeping on the street and to maintain a hygiene and clean environment.
166. In Subhash Kumar vs. State of Bihar (supra), Court observed that right to a healthy environment existed within the right to life and breach of the right to a healthy environment could be litigated. In 19th decade, Supreme Court also recognize various principles applicable to environmental law like 'Polluter Pays' principle, public trust doctrine, precautionary principle, existence of inter-generational rights and 101 sustainable development and also diluted the concept of locus-standi in environment matters in particular. In International environmental law, there is another document of non-regression which mandates the State or its entities not to pursue action which has a net effect of diminishing the legal protection of the environment or access to environmental justice and this doctrine was applied and recognized by this Tribunal in OA 677/2016, Society for Protection of Environment and Bio-diversity vs. Union of India, 2018 SCC OnLine NGT 190. When NGT Act, 2010 was enacted, vide Section 20, the principles of 'Polluter Pays' were recognized and this is the statutory recognition in the context of India. The law of environment has developed through judicial precedents. The reason being that environment is nobody's private property but each and every individual separately or collectively has interest in a clean and fresh environment. Therefore, the environmental litigation is initiated not for settling of private or personal rights but public rights and welfare. It is for this reason that the environmental litigation has mostly generated through Public Interest Litigation but looking through the importance of the issues and the subject matter, the interest of environment has been protected and given priority over other rights. It has been noted that development is antithesis to environment but for balancing the same, the principle of sustainable development has been propounded and congested so as to keep a balance of both but in a given situation, environment has to prevail over the development. The dispute relating to environment, therefore, has been given different dimensions and this is also evident from Supreme Court judgment wherein power of this Tribunal for taking suo-moto cognizance of dispute has been recognized, observing that environmental matters stand on a different footing and in brief, Court has said in Municipal Corporation of Greater Mumbai vs. Ankita Sinha & Ors., (2021) SCC OnLine SC 897, as under:
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i. NGT was conceived as a complimentary specialized forum to deal with all environmental multidisciplinary issues, both as original and also as an appellate authority, which complex issues were hitherto dealt with by High Courts and Supreme Court.
ii. NGT was intended to be the competent forum for dealing with environmental issues instead of those being canvassed under the writ jurisdiction of Courts. It was explicitly noted that creation of NGT would allow Supreme Court and High Courts to avoid intervening under their inherent jurisdiction when an alternative efficacious remedy would become available before the specialized forum.
iii. The power of judicial review was omitted to ensure avoidance of High Courts' interference with Tribunal's orders by way of a mid-
way scrutiny by High Courts, before the matter travels to Supreme Court where NGT's orders can be challenged.
iv. The mandate and jurisdiction of NGT is conceived to be of the widest amplitude and it is in the nature of a sui generis forum.
v. Unlike Civil Courts which cannot travel beyond the relief sought by the parties, NGT is conferred with power of moulding any relief. The provisions show that NGT is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties.
vi. Myriad roles are to be discharged by NGT, as was encapsulated in the Law Commission Report, the Preamble and the Statement of Objects and Reasons.
vii. Parliament intended to confer wide jurisdiction on NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by High Courts under 103 Article 226 of the Constitution or by Supreme Court under Article 32 of the Constitution.
viii. The activities of NGT are not only geared towards the protection of environment but also to ensure that the developments do not cause serious and irreparable damage to ecology and the environment.
ix. Concept of lis, would obviously be beyond the usual understanding in civil cases where there is a party (whether private or government) disturbing the environment and the other one (could be an individual, a body or the government itself), who has concern for the protection of environment.
x. NGT is not just an adjudicatory body but has to perform wider functions in the nature of prevention, remedy and amelioration.
xi. In Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, (2012)8SCC326, Court mandated transfer of all cases concerning the statutes mentioned in Schedule I of NGT Act to the specialized forum as otherwise there can be conflicts with the High Courts. Notably, some of those cases were originally registered suo-moto by the Courts.
xii. As long as the sphere of action is not breached, NGT's powers must be understood to be of the widest amplitude.
xiii. In Mantri Techzone (P) Ltd. vs. Forward Foundation, (2019)18SCC494, Court recognized that NGT is set up under the constitutional mandate in Entry 13 of List I in Schedule VII to enforce Article 21 with respect to the environment and in the context, Tribunal has special jurisdiction for enforcement of environmental rights.104
xiv. In Rajeev Suri vs. DDA, 2021 SCC Online SC 7, Court said that in its own domain, as crystalized by the statute, the role of NGT is clearly discernible.
xv. Referring to Andhra Pradesh Pollution Control Board vs. Prof. M. V. Nayudu (Retd.) and Ors, (1999)2SCC718, Court said that role of NGT was not simply adjudicatory in the nature of a lis but to perform equally vital roles which are preventative, ameliorative or remedial in nature. The functional capacity of the NGT was intended to leverage wide powers to do full justice in its environmental mandate.
xvi. Statutory Tribunals were categorized to fall under four subheads; Administrative Tribunals under Article 323A; Tribunals under Article 323B; Specialized sector Tribunals and most prominently; Tribunals to safeguard rights under Article
21. As already noted, the duties of NGT brings it within the ambit of the fourth category, creating a compelling proposition for wielding much broader powers as delineated by the statute. xvii. Referring to State of Meghalaya vs. All Dimasa Students Union, (2019)8SCC177, Court said that reflecting on the expanded role of NGT unlike other Tribunals, this Court so appositely observed that the forum has a duty to do justice while exercising "wide range of jurisdiction" and the "wide range of powers", given to it by the statute.
xviii. NGT has been recognized as one of the most progressive Tribunals in the world.
xix. NGT being one of its own kind of forum, commends us to consider the concept of a sui generis role, for the institution. xx. Referring to DG NHAI vs. Aam Aadmi Lokmanch, 2020 SCC Online SC 572, Court repelled the argument for a restricted 105 jurisdiction for NGT and observed in paragraph 76 that powers conferred on NGT are both reflexive and preventive and the role of NGT was recognized in paragraph 77 as "an expert regulatory body", which can issue general directions also albeit within the statutory framework.
xxi. NGT was conceived as a specialized forum not only as a like substitute for a civil court but more importantly to take over all the environment related cases from High Courts and Supreme Court.
xxii. Given the multifarious role envisaged for NGT and the purposive interpretation which ought to be given to the statutory provisions, it would be fitting to regard NGT as having the mechanism to set in motion all necessary functions within its domain and this, as would follow from the discussion below, should necessarily clothe it with the authority to take suo-motu cognizance of matters, for effective discharge of its mandate. xxiii. Section 14(1) of NGT Act, 2010 deals with jurisdiction, and the jurisdictional provision conspicuously omits to specify that an application is necessary to trigger NGT into action. In situations where the three prerequisites of Section 14(1) i.e., Civil cases; involvement of substantial question of environment; and implementation of the enactments in Schedule I are satisfied, the jurisdiction and power of NGT gets activated. On these material aspects, NGT is not required to be triggered into action by an aggrieved or interested party alone. It would therefore be logical to conclude that the exercise of power by NGT is not circumscribed by receipt of application.
xxiv. Section 14(1) exists as a standalone feature, not constricted by the operational mechanism of the subsequent subsections. The 106 sub-Section (2) of Section 14 functions as a corollary and comes into play when a dispute arises from the questions referred to in Section 14(1). Likewise sub-Section (3) thereafter, refers to the period of limitation concerning applications, when they are addressed to the NGT. Where adjudication is involved, the adjudicatory function under Section 14(2) comes into play. xxv. When it is a case warranting NGT's intervention, or may be a situation calling for decisions to meet certain exigencies, the functions under Section 14(1) can be undertaken and those may not involve any formal application or an adjudicatory process. However, the later provisions may not work in similar fashion. Therefore, care must be taken to ensure unrestricted discharge of the responsibilities under Section 14(1) and that wide arena of NGT's functioning.
xxvi. The other pertinent provisions relating to, inter-alia, jurisdiction, interim orders, payment of compensation and review, do not require any application or appeal, for NGT to pass necessary orders. These crucial powers are expected to be exercised by NGT, would logically suggest that the action/orders of NGT need not always involve any application or appeal. To hold otherwise would not only reduce its effectiveness but would also defeat the legal mandate given to the forum.
xxvii. To be effective in its domain, we need to ascribe to NGT a public responsibility to initiate action when required, to protect the substantive right of a clean environment and the procedural law should not be obstructive in its application.
xxviii. It is not only a matter of rhetoric that the Tribunal is to remain ever vigilant, but an important legal onus is cast upon it to act with promptitude to deal with environmental exigencies. The 107 responsibility is not just to resolve legal ambiguities but to arrive at a reasoned and fair result for environmental problems which are adversarial as well as non-adversarial.
xxix. It would thus be appropriate to state that much of the principles, institutions and mechanisms in this sphere have been created, on account of this Court's initiative.
xxx. Supreme Court adopted the role of an "amicus environment" by threading together human rights and environmental concerns, resultingly developing a sui generis environmental discourse. xxxi. NGT is the institutionalization of the developments made by Supreme Court in the field of environment law. These progressive steps have allowed it to inherit a very broad conception of environmental concerns. Its functions, therefore, must not be viewed in a cribbed manner, which detracts from the progress already made in the Indian environmental jurisprudence. xxxii. NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns.
xxxiii. NGT must act, if the exigencies so demand, without indefinitely waiting for the metaphorical Godot to knock on its portal.
167. Therefore, the issue relating to 'environment' vis-a-vis 'reasonable time' or 'limitation' has to be considered in the backdrop of the fact that no one has any legal, constitutional or otherwise right to damage environment, to dump hazardous waste in an unscientific manner at any place so as to damage environment as also adverse impact on the health of the people at large. On the contrary, there is corresponding obligation upon proponent not to indulge in commercial or otherwise activities so as 108 to cause damage to environment and if it cause damage to environment, it will have to pay for the damages caused by it for remediation of damaged environment. The Statuary Regulators to supervise and regulate such activities are there but if they fail to discharge their obligation in an effective manner, Courts can intervene and if thereafter, appropriate action is taken by such regulators, it cannot be said that such action is vitiated on account of delay or latches for the very reason that such action even if taken belatedly does not affect anybody's rights related to environment.
168. Learned Counsel for appellant then contended that 'cause of action' arose when appellant allegedly dumped the hazardous waste in open area and if the action is not taken at the relevant time, the reasonableness of the period should be taken from that time. In our view, when a proponent has caused dumping of hazardous waste in an unscientific manner which has the effect of continuously damaging environment, not only the time of such dumping but so long as the dumping has continued and even thereafter where damage to environment is continuing, it is a continuous cause of action and any belated or delayed remedial or punitive action which is not otherwise barred by any specific statute, will not be vitiated in law.
169. 'Cause of action' as understood in legal parlance is a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed. It is the foundation of a suit or an action. 'Cause of Action' is stated to be entire set of facts that give rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In other words, it is a bundle of facts which when taken with the law applicable to them gives the plaintiff, the right to relief against defendants. It must contain facts or acts done by the 109 defendants to prove 'cause of action'. While construing or understanding the cause of action, it must be kept in mind that the pleadings must be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or passage and to read it out of the context, in isolation. Although, it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. Intention of the party concerned is to be gathered, from the pleading taken as a whole. [Ref. Shri Udhav Singh vs. Madhav Rao Scindia, (1977) 1 SCC 511 and A.B.C Laminart Pvt Ltd. vs. A.P. Agencies, AIR 1989 SC 1239].
170. The expression 'cause of action' as normally understood in civil jurisprudence has to be examined with some distinction, while construing it in relation to the provisions of the NGT Act, 2010. Such 'cause of action' should essentially have nexus with the matters relating to environment. It should raise a substantial question of environment relating to the implementation of the statutes specified in Schedule I of NGT Act, 2010. A 'cause of action' might arise during the chain of events, in establishment of a project but would not be construed as a 'cause of action' under provisions of Section 14 of NGT Act, 2010 unless it has a direct nexus to environment or it gives rise to a substantial environmental dispute. For example, acquisition of land simplicitor or issuance of notification under the provisions of the land acquisition laws, would not be an event that would trigger the period of limitation under the provisions of NGT Act, 2010 'being cause of action first arose'. A dispute giving rise to a 'cause of action' must essentially be an environmental dispute and should relate to either one or more of the Acts stated in Schedule I to NGT Act, 2010. If such dispute leading to 'cause of action' is alien to the question of 110 environment or does not raise substantial question relating of environment, it would be incapable of triggering prescribed period of limitation under the NGT Act, 2010. [Ref: Liverpool and London S.P. and I Asson. Ltd. vs. M.V. Sea Success I and Another (2004)9SCC512, J. Mehta vs. Union of India, 2013 ALL (I) NGT REPORTER (2) Delhi 106, Kehar Singh vs. State of Haryana, 2013 ALL (I) NGT REPORTER (DELHI) 556 and Goa Foundation vs. Union of India, 2013 ALL (I) NGT REPORTER DELHI 234].
171. Furthermore, 'cause of action' has to be completed. For a dispute to culminate into a cause of action, actionable under Section 14 of NGT Act, 2010, it has to be a 'composite cause of action' meaning that, it must combine all the ingredients spelled out under Section 14(1) and (2) of NGT Act, 2010. It must satisfy all the legal requirements i.e., there must be a dispute. There should be a substantial question relating to environment or enforcement of any legal right relating to environment and such question should arise out of the implementation of the enactments specified in Schedule I. Action before Tribunal must be taken within the prescribed period of limitation triggering from the date when all such ingredients are satisfied along with other legal requirements. Accrual of 'cause of action' as aforestated would have to be considered as to when it first arose.
172. In contradistinction to 'cause of action first arose', there could be 'continuing cause of action', 'recurring cause of action' or 'successive cause of action'. These diverse connotations with reference to cause of action are not synonymous. They certainly have a distinct and different meaning in law, 'cause of action first arose' would refer to a definite point of time when requisite ingredients constituting that 'cause of action' were complete, providing applicant right to invoke the jurisdiction of the Court or the 111 Tribunal. The 'Right to Sue' or 'right to take action' would be subsequent to an accrual of such right. The concept of continuing wrong which would be the foundation of continuous cause of action has been accepted by Supreme Court in the case of Bal Krishna Savalram Pujari & Others vs. Sh. Dayaneshwar Maharaj Sansthan & Others AIR1959SC798.
173. In the case of State of Bihar vs. Deokaran Nenshi and Another (1972)2SCC890, Supreme Court was dealing with the provisions of Section 66 and 79 of Mines Act, 1952. These provisions prescribed for a penalty to be imposed upon guilty, but provided that no Court shall take cognizance of an offence under Act unless a complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. Explanation to the provision specifically provided that if the offence in question is a continuing offence, the period of limitation shall be computed with reference to every point of time during which the said offence continues. Supreme Court held as under:
"5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."
174. Whenever a wrong or offence is committed and ingredients are satisfied and repeated, it evidently would be a case of 'continuing wrong or offence'. For instance, using the factory without registration and license 112 was an offence committed every time the premises were used as a factory. Supreme Court in the case of Maya Rani Punj vs. Commissioner of Income Tax, Delhi, (1986)1SCC445, was considering, if not filing return within prescribed time and without reasonable cause, was a continuing wrong or not, Court held that continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as long as the default continued. The penalty is imposable as long as the default continues and as long as the assesse does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law.
175. High Court of Delhi in the case of Mahavir Spinning Mills Ltd. vs. Hb Leasing And Finances Co. Ltd., 199(2013)DLT227, while explaining Section 22 of Limitation Act took the view that in the case of a continuing breach, or of a continuing tort, a fresh period of limitation begins to run at every moment of time during which the breach or the tort, as the case may be, continues. Therefore, continuing the breach, act or wrong would culminate into the 'continuing cause of action' once all the ingredients are satisfied. Continuing cause of action thus, becomes relevant for even the determination of period of limitation with reference to the facts and circumstances of a given case. The very essence of continuous cause of action is continuing source of injury which renders the doer of the act responsible and liable for consequence in law. Thus, the expressions 'cause of action first arose', 'continuing cause of action' and 'recurring cause of action' are well accepted cannons of civil jurisprudence but they have to be understood and applied with reference to the facts and circumstances of a given case. It is not possible to lay down with absolute certainty or exactitude, their definitions or limitations. They would have to be construed with reference to the facts and circumstances of a given 113 case. These are generic concepts of civil law which are to be applied with acceptable variations in law.
176. The settled position of law is that in law of limitation, it is only the injury alone that is relevant and not the consequences of the injury. If the wrongful act causes the injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. In other words, distinction must be made between continuance of legal injury and the continuance of its injurious effects. Where a wrongful act produces a state of affairs, every moment continuance of which is a new tort, a fresh cause of action for continuance lies. Wherever a suit is based on multiple cause of action, period of limitation will begin to run from the date when the right to sue first accrues and successive violation of the right may not give rise to a fresh cause of action. [Ref: Khatri Hotels Private Limited and Another vs. Union of India and Another (2011)9SCC126, Bal Krishna Savalram Pujari & Others vs. Sh. Dayaneshwar Maharaj Sansthan & Ors, AIR1959SC798, G.C. Sharma vs. Municipal Corporation of Delhi, (1979)ILR2Delhi771 and Kuchibotha Kanakamma & Anr. vs Tadepalli Ptanga Rao & Ors., AIR1957AP419].
177. A cause of action which is complete in all respects gives the applicant a right to sue. An applicant has a right to bring an action upon a single cause of action while claiming different reliefs. Rule 14 of National Green Tribunal (Practice and Procedure) Rules, 2011 (hereinafter referred to as 'NGT Rules, 2011'), shows the clear intent of the framers of the Rules that multiple reliefs can be claimed in an application provided they are consequential to one another and are based upon a single cause of action. Different causes of action, thus, may result in institution of different applications and, therefore, there is exclusion of the concept of the 'joinder 114 of causes of action' under NGT Rules, 2011. Multiple cause of action again would be of two kinds. One, which arise simultaneously and other, which arise at a different or successive point of time. In first kind, cause of action accrues at the time of completion of the wrong or injury. In later, it may give rise to cause of action or if the statutes so provide when 'cause of action first arose' even if the wrong was repeated. Where the injury or wrong is complete at different times and may be of similar and different nature, then every subsequent wrong depending upon the facts of the case may give rise to a fresh cause of action.
178. To this general rule, there could be exceptions. In particular, such exceptions could be carved out by the legislature itself. In a statute, where framers of law use the phraseology like 'cause of action first arose' in contradistinction to 'cause of action' simplicitor. Accrual of right to sue means accrual of cause of action for suit. The expressions 'when right to sue first arose' or 'cause of action first arose' connotes date when right to sue first accrued, although cause of action may have arisen even on subsequent occasions. Such expressions are noticed in Articles 58 of Limitation Act, 1963. We may illustrate this by giving an example with regard to the laws that we are dealing here. When an order granting or refusing environmental clearance is passed, right to bring an action accrues in favour of an aggrieved person. An aggrieved person may not challenge the order granting environmental clearance, however, if on subsequent event there is a breach or non-implementation of the terms and conditions of the environmental clearance order, it would give right to bring a fresh action and would be a complete and composite recurring cause of action providing a fresh period of limitation. It is also for the reason that the cause of action accruing from the breach of the conditions of the consent order is no way dependent upon the initial grant or refusal 115 of the consent. Such an event would be a complete cause of action in itself giving rise to fresh right to sue. Thus, where the legislature specifically requires the action to be brought within the prescribed period of limitation computed from the date when the cause of action 'first arose', it would by necessary implication exclude the extension of limitation or fresh limitation being counted from every continuing wrong, so far, it relates to the same wrong or breach and necessarily not a recurring cause of action.
179. Now, we would deal with the concept of recurring cause of action. The word 'recurring' means, something happening again and again and not that which occurs only once. Such reoccurrence could be frequent or periodical. The recurring wrong could have new elements in addition to or in substitution of the first wrong or when 'cause of action first arose'. It could even have the same features but its reoccurrence is complete and composite. The recurring cause of action would not stand excluded by the expression 'cause of action first arose'. In some situation, it could even be a complete, distinct cause of action hardly having nexus to the first breach or wrong, thus, not inviting the implicit consequences of the expression 'cause of action first arose'. Supreme Court clarified the distinction between continuing and recurring cause of action with some finesse in the case of M.R. Gupta v. Union of India and others, (1995)5SCC628, Court held that:
"...The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that it the appellant's claim is found correct on merits. He would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules 116 and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.
The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Ors. v. Mattapalli, Raju and Ors. AIR (1950) F C1."
180. Continuing cause of action would refer to the same act or transaction or series of such acts or transactions. The recurring cause of action would have an element of fresh cause which by itself would provide applicant the right to sue. It may have even be de hors the first cause of action or the first wrong by which the right to sue accrues. Commission of breach or infringement may give recurring and fresh cause of action with each of such infringement like infringement of a trademark. Every rejection of a right in law could be termed as a recurring cause of action. [Ref: Ex. Sep. Roop Singh vs. Union of India and Others 2006 (91) DRJ 324, M/s. Bengal Waterproof Limited vs. M/s. Bombay Waterproof Manufacturing Company and Another, (1997) 1 SCC 99].
181. The principle that emerges from the above discussion is that the 'cause of action' satisfying the ingredients for an action which might arise subsequently to an earlier event give result in accrual of fresh right to sue 117 and hence reckoning of fresh period of limitation. A recurring or continuous cause of action may give rise to a fresh cause of action resulting in fresh accrual of right to sue. In such cases, a subsequent wrong or injury would be independent of the first wrong or injury and a subsequent, composite and complete cause of action would not be hit by the expression 'cause of action first arose' as it is independent accrual of right to sue. In other words, a recurring cause of action is a distinct and completed occurrence made of a fact or blend of composite facts giving rise to a fresh legal injury, fresh right to sue and triggering a fresh lease of limitation. It would not materially alter the character of the preposition that it has a reference to an event which had occurred earlier and was a complete cause of action in itself. In that sense, recurring cause of action which is complete in itself and satisfies the requisite ingredients would trigger a fresh period of limitation. To such composite and complete cause of action that has arisen subsequently, the phraseology of the 'cause of action first arose' would not effect in computing the period of limitation. The concept of cause of action first arose must essentially relate to the same event or series of events which have a direct linkage and arise from the same event. To put it simply, it would be act or series of acts which arise from the same event, may be at different stages. This expression would not de bar a composite and complete cause of action that has arisen subsequently.
182. In the present case, when the principles discussed above are applied, we find that though appellant is guilty of dumping hazardous waste containing chromium at the questioned site between 09.03.1998 to 31.03.2004 but the said dumped material has continued to lie there, leachate has continuously percolated in the soil and has contaminated ground water. This ground water through bore wells and wells has been 118 used by the local people and its adverse effect has been noticed on account of various infirmities suffered by local people as noticed in the reports dated 25.09.2019 and 26.09.2019 submitted by the Committee of Justice Arun Tandon, former Judge. Dumped material still is lying there and its consequences of causing to environment as also to health of people are also continuous even till this date. That being so, it is a continuous cause of action hence, it cannot be said that environmental compensation determined by RO UPPCB, impugned in this Appeal, is vitiated in law on account of delay, latches or limitation.
183. We answer issue V in negative and against appellant. ISSUES VI and VIII:
184. In view of the findings recorded in respect of issue IV, we have no hesitation in holding that neither the impugned order dated 28.05.2020, determining liability of environmental compensation of appellant as Rs. 46,67,80,837.50/- can be sustained nor reports dated 30.09.2021, computing liability of environmental compensation as Rs. 36,75,67,299/- and dated 28.07.2022, computing liability of environmental compensation as Rs. 46,89,51,039/- can be sustained. The above order as also the reports, to the extent the same have determined environmental compensation of appellant, are modified by holding that the liability of appellant to pay environmental compensation is Rs. 13,69,56,375/-. Order dated 28.05.2020 and reports dated 30.09.2021 and 28.07.2022 stand modified accordingly.
185. Issues VI and VIII are answered accordingly.
ISSUE VII:
186. We have held that appellant has violated the provisions of Water Act 1974, Air Act 1981, EP Act 1986 and HWMH Rules, 1986 claimed under 119 EP Act, 1986. The violation of the provisions of Water Act 1974, Air Act 1981 and EP Act 1986 is an offence under Sections 41,43 and 44; Chapter 7 of Water Act 1974; Section 37, 38 and 39 Chapter 6 of Air Act, 1981 and Section 15 of EP Act, 1986. Therefore, appellant is guilty of committing crime by committing offences under the aforesaid Statutes and thereby, proceedings with its industrial unit for financial benefits. The money earned from the above commercial transactions having been used by appellant for its own benefit taking it as a lawfully earned money, therefore, it also amount to an offence under Section 3 of Prevention of Money Laundering Act, 2002.
Offence under Prevention of Money Laundering Act, 2002:
187. When environmental norms are not observed and in violation thereof there is discharge and/or emission of pollutants causing pollution and thereby commercial activities for commercial gains continue, such activities also attract provisions of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA 2002' as amended from time to time).
188. PMLA 2002 was enacted pursuant to resolution no. S-17/2 adopted by General Assembly of United Nation at 17th Special Sessions held on 23.02.1990 on political declaration and global programme of action; and political declaration adopted by UNGA in the Special Session held on 8th to 10th June, 1998. It came into force however on 01.07.2005. The term "money laundering" and "proceeds of crime" are defined in Section-2(p) and (u) which read as under:
"2(p). "Money Laundering" has the meaning assigned to it in Section-
3. 2(u). "Proceeds of Crime" means any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a "scheduled offence" or the value of any such property or 120 where such property is taken or held outside the country, then the property equivalent in value within the country or abroad. [Explanation: for the removal of doubts, it is hereby clarified that proceeds of crime include property not only derived or obtained from the "scheduled offence" but also any property which may directly or indirectly be derived or obtained as result of criminal activity relatable to the "schedule offence";"
189. "Scheduled Offence" is defined in Section 2(y) and says;
2(y). "Scheduled Offence" means-
(i) The offences specified under Part-A of the Schedule; or
(ii) The offences specified under Part-B of the Schedule, if the total value involved in such offences is one crore rupees or more; or
(iii) The offences specified under Part-C of the schedule.
190. Section 3 of PMLA 2002 talks of offence of money laundering and says:
"3. Offence of money laundering: whosoever directly or indirectly attempts to indulge or knowingly assists or knowing is a party or is actually involve in any process or activity connected proceeds of crime including in concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money laundering."
191. There is an explanation also inserted by Finance Act, 2019 w.e.f. 01.08.2019, but for the issue under consideration, it is not relevant, hence omitted.
192. Attachment of property involved in "money laundering" is governed by Section 5 of PMLA 2002 which permits attachment by Director or any other officer not below the rank of Deputy Director authorised by Director for the purpose of such attachment and he has reason to believe (to be recorded in writing) on the basis of material in his possession that any person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this chapter (by order in writing), may provisionally attach such property for a period not exceeding 180 days 121 from the date of the order, in such manner as may be prescribed.
193. First proviso of Section 5(1) imposes a condition that no such order of attachment shall be made unless, in relation to the "Scheduled offence", a report has been forwarded to a Magistrate under Section 173 Cr.P.C. or a complaint has been filed by a person authorised to investigate the offence mentioned in that schedule, before a Magistrate or Court for taking cognizance of the "Scheduled offence".
194. There is an exception in 2nd proviso of Section 5(1) authorising Director or the officers authorised by him to attach any property of any person referred to in Sub-Section 1, if he has reason to believe (to be recorded in writing), on the basis of material in his possession that if such property involved in money laundering is not attached immediately, it is likely to frustrate proceeding under PMLA 2002.
195. Section 5(5) requires the Director or the other officer, who has provisionally attached property under Sub-Section 1 to file a complaint within 30 days from such attachment stating facts of such attachment before Adjudicating Authority which is appointed under Section 6.
196. Section 8 provides the procedure to be observed by Adjudicating Authority to pass an order confirming attachment of property under Section 5(1). When such order of confirmation is passed, attached property would remain under attachment till trial completes and if Special Court under PMLA 2002 recorded finding of conviction of commission of offence of money laundering, such property shall stand confiscated to the Central Government but where Special Court finds that offence of money laundering has not taken place or properties not involved in money laundering, it shall release such property to the person entitled to receive it.
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197. Section 5 shows that except the cases covered by second proviso, no attachment is permissible unless report under Section 173 Cr.P.C. submitted to the Magistrate or complaint has been filed before the Magistrate or concerned to take cognizance of "Scheduled offence".
198. Schedule to PMLA 2002 as initially came into force on 01.07.2005, was having Part-A, divided in paragraph 1, dealing with Section 121 and 121(A) of IPC; paragraph-2 covering certain offences under Narcotic Drugs and Psychotropic Substances Act, 1985 and Part-B paragraph 1 offences under Sections 302, 304, 307, 308, 327, 329, 364(A), 384 to 389, 392 to 402, 467, 489A and 489B of IPC; paragraph 2 contains some offences of Arms Act, paragraph 3 referred to offences under Wild Life Protection Act 1972, Paragraph 4, offences under Immoral Traffic Prevention Act, 1956 and Paragraph 5, offences under Sections 7, 8, 9 and 10 of Prevention of Corruption Act, 1988 (hereinafter referred to as 'PCA 1988').
199. Thus, PMLA 2002, at the time of enforcement in 2005, did not cover Sections 120-B, 468, 420 and 471 IPC and Section 13 of PCA 1988 and environmental enactments. In other words, offences under these Sections/Statutes were not "Scheduled offences" for the purpose of Section 3 PMLA 2002.
200. The Schedule underwent amendment for the first time vide Prevention of Money Laundering (Amendment) Act, 2009 published in Gazette of India, Extraordinary dated 06.03.2009. In Part A paragraph 1, Sections 489A and 489B were inserted. We are not concerned with the offences referred under paragraph 2 of the Schedule, hence amendments made therein are omitted. After paragraph-2, paragraph-3 and paragraphs-4 were inserted relating to offences under Explosive Substance Act, 1908 and Offences Under Unlawful Activities (Prevention) 123 Act, 1967. In Part-B, paragraph 1 was substituted and a number of offences of IPC were added and this included Section 120-B, 420, 467 and 471 IPC. Some amendments were made in paragraphs 3 and 5 of Part-B and thereafter, paragraphs 6 to 25 were inserted covering offences under several enactments which are not relevant for the purpose of issue before us. Part C was also inserted in the schedule to cover cross border offences and the same is also omitted. Even after this amendment, Sections 468 IPC and 13 PCA 1988 were not "scheduled offence" so as to attract offence under Section 3 of PMLA 2002. The amendment was given effect from 01.06.2009.
201. Next amendment was made vide Prevention of Money Laundering (Amendment) Act, 2012 published in Gazette of India, Extraordinary dated 04.01.2013. Paragraph A part-1 of the Schedule was substituted adding some more offences of IPC. In fact, entire Part A was substituted by a new Part-A which had paragraphs 1 to 28 covering offences under various Statutes, some were earlier in Part A and also Part B and some newly added. Paragraph 8 Part 1 as substituted in 2012 covered offences under Sections 7, 8, 9, 10 and 13 of PCA 1988. Thus, Section 13 was included therein only in 2013. In Part B, paragraph 1 to 25 were omitted and in Part C serial No. 2 and entries relating thereto, were omitted. This amendment came into force from 15.02.2013.
202. The offences under environmental norms have been included in the Schedule to PMLA 2002 inasmuch as paragraph 23, 25,26,27 have been inserted by Section 30 of PML (Amendment) Act, 2012 which came into force on 15.02.2013 and said insertion of paragraphs are as under:
"PARAGRAPH 23 OFFENCES UNDER THE BIOLOGICAL DIVERSITY ACT, 2002 (18 of 2003) 124 Section Description of offence 55 read with Penalties for contravention of section 6, etc. section 6.
PARAGRAPH 25 OFFENCES UNDER THE ENVIRONMENT PROTECTION ACT, 1986 (29 OF 1986) Section Description of offence 15 read with Penalty for discharging environmental section 7. pollutants, etc., in section 7 excess of prescribed standards.
15 read with Penalty for handling hazardous substances section 8. without section 8 complying with procedural safeguards.
PARAGRAPH 26 OFFENCES UNDER THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 (6 OF 1974) Section Description of offence 41(2) Penalty for pollution of stream or well.
43 Penalty for contravention of provisions of section 24.
PARAGRAPH 27 UNDER THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 (14 OF 1981) Section Description of offence 37 Failure to comply with the provisions for operating industrial plant."
203. All these provisions relating to offences under various Environmental Statutes have been placed in part A of the Schedule. Application of PMLA 2002 in respect to the aforesaid offences has to be seen in the light of Section 3 read with schedule as amended vide Amendment Act, 2012.
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204. In A.K. Samsuddin vs. Union of India, Writ Petition No. 15378/2016 decided on 19.07.2016, Kerala High Court said that the time of commission of the "scheduled offence" is not relevant in the context of the prosecution under the Act. What is relevant in the context of the prosecution is the time of commission of the Act of money laundering. It has to be established that the money involved are the proceeds of crime and having full knowledge of the same, the person concerned projects it as untainted property.
205. In Smt. Soodamani Dorai vs. Joint Director of Enforcement, Writ Petition No.8383 of 2013 decided on 04.10.2018, a Single Judge of Madras High Court observed that substratal subject of the Act is to prevent money laundering and to confiscate proceeds of crime.
206. PMLA 2002 brings in a different kind of offence on the statute book. In Janta Jha vs. Assistant Director (2013) SCC Online (Odisha) 619, High Court of Odisha held that even if an accused has been acquitted of the charges framed against him in Sessions Trial, a proceeding under PMLA 2002 cannot amount to double jeopardy where procedure and nature of proof are totally different from a criminal proceeding under IPC.
207. On the contrary, in Rajeev Chanana vs. Deputy Director (2014) SCC Online (Delhi) 4889, it was held by Delhi High Court that after acquittal of a person from a "Scheduled offence", trial for an offence under Section 3 of PMLA 2002 will not survive. Court said it is hard to imagine as to how a trial for an offence of money laundering can continue where the fundamental basis, i.e., the commission of a Scheduled offence has been found to be unproved.
208. The question of simultaneous investigation by Police or CBI or any other Investigating Agencies in respect of schedule offences and 126 Enforcement Directorate (hereinafter referred to as 'ED') under Section 3 of PMLA 2002 was considered by a Single Judge (Hon'ble S.P. Garg, J) of Delhi High Court in Rohit Tandon vs. Enforcement Directorate in Bail Application No. 119 of 2017 and Crl.M.B. 121 of 2017. In the judgment dated 05.05.2017, Court found that Delhi Police registered FIR under Section 420, 406, 409, 467, 468, 188 and 120-B on 25.12.2016 and very next date ED registered ECIR on 26.12.2016. Court said that presence of "Scheduled offence" is only a trigger point for initiating investigation under PMLA 2002. Act nowhere prescribes, if ED is debarred from conducting investigation under Sections 3 and 4 PMLA 2002 unless investigating agency concludes its investigation in the FIR or charge sheet is filed therein for commission of "Scheduled offence". The proceedings under PMLA 2002 are distinct from the proceedings of the "Scheduled offence". In the Investigation of FIR by Police, ED has no control. The proceedings under PMLA 2002 are not dependent on the outcome of the investigation conducted in the "Scheduled offences". More over to avoid conflicting and multiple opinions of court, Section 44 PMLA 2002 provides trial by Special Court in case of "Scheduled Offence" and offence under PMLA 2002. Delhi High Court relied on a judgment of Allahabad High Court in Sushil Kumar Katiyar vs. Union of India & Ors. (MANU/UP/0777/2016) wherein Allahabad High Court said:
"A person can be prosecuted for the offence of money laundering even if he is not guilty of "Scheduled offences" and his property can also be provisionally attached irrespective of the fact as to whether he has been found guity of the "Scheduled offences". The prosecution is not required to wait for the result of the conviction for the "scheduled offences" in order to initiate proceedings U/s 3 of the PML Act. However, the person against whom, there is an allegation of the offence of money laundering, can approach appropriate forum, in order to show his bonafide and innocence that is not guilty of the offence of money laundering and has not acquired any proceeds of crime or any property out of the proceeds of crime."
209. Against the judgment of Delhi High Court in Rohit Tandon vs. The 127 Enforcement Directorate, Appeal was filed in Supreme Court and judgment is reported in (2017) SCC Online SC 1304. Supreme Court upheld, the order of High Court rejecting Bail. Then meeting further argument raised on behalf of Rohit Tandon that the incriminating material recovered, would not take the colour of proceeds of crime as there is no allegation or the prosecution complaint that un-accounted cash deposited by appellant was result of criminal activity, it was observed that the expression "criminal activity" has not been defined but very nature of the alleged activities of the accused referred to in the predicate offence are criminal activities. Court observed:
".... however, the stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens-rea. In that the concealment, possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a "scheduled offence". That would come within the meaning of Section 3 and punishable under Section 4 of the Act, being a case of money laundering."
210. Recently in P. Chidambaram vs. Directorate of Enforcement (2019) SCC Online SC 1143, Court considered scheme of PMLA 2002, and observed that money laundering is the process of concealing illicit sources of money and launderer transforming the money proceeds derived from criminal activity into funds and moved to other institution or transformed into legitimate asset. It is realized world around that money laundering poses a serious threat not only to the financial system of the country but also to their integrity and sovereignty.
"Schedule offence" is a sine qua non for the offence of money laundering which would generate the money i.e., being laundered.
211. In the present case, when environmental norms were not followed, by not operating ETP or by discharging partially or totally untreated pollutant or by causing other violations, this resulted in commissioning of 128 Scheduled offence and revenue earned by committing such crime is proceeds of crime as defined in PMLA 2002 and by showing it part of business proceeds in accounts amounts to projecting or claiming it as untainted property. The entire activity is covered by Section 3 of PMLA 2002.
212. It appears that initially PMLA 2002 was enacted so as to cover activities of terrorist, illegal traffic in narcotics, enemies of the country etc., applying to a very limited number of statutes, Enforcement Directorate had been taking action under PMLA 2002 in a narrow sphere. It has forgot to take note of the fact that scope of PMLA 2002 has been enhanced or widened, a lot, at least after amendment Act of 2012 w.e.f. 15.02.2013. More than nine and half years have passed but not a single action has been taken by Enforcement Directorate, against violators committing offences under environmental Statutes which have been included in the Schedule, part A of PMLA 2002. The offences under Environmental Acts, as such are non-cognizable but under PMLA 2002, offences are cognizable. Since Competent Authority has never resorted to proceed against violators of environmental Statutes despite committing offences thereunder, which are included in PMLA 2002, this inaction has encouraged polluters to continue violation with impunity. Parliament's intention of treating environmental violations as very serious offences is writ large from the fact that, offences under environmental laws as noticed above, have been included in Schedule, Part A of PMLA 2002 yet enforcement machinery has frustrated entire attempt. It is incumbent upon the Competent Authorities regulating and enforcing PMLA 2002 to take action against such violators, if not against small violators, at least against substantial resourceful bigger proponents whose violations are liable to cause huge damage to environment as also the inhabitants. At least matters of large 129 scale industries and medium scale industries should have been examined by Competent Authority under provisions of PMLA 2002.
213. We do not intend to delve more on the above aspect. Our endeavour was to highlight inapt attitude and apathy towards enforcement of laws enacted to give teeth to environmental laws but responsible authorities find it convenient to put these laws in hibernation.
214. We accordingly, answer issue VI holding that appellant having violated the provisions of Water Act 1974, Air Act 1981 and EP Act 1986, therefore is also liable for action under PMLA 2002.
215. Issue VII is answered in affirmative and against appellant.
216. In view of the above discussion, we allow Appeal partly in the manner as under:
I. Appellant shall pay the aforesaid amount of Rs. 13,69,56,375/-
(Rupees thirteen crore sixty nine lakhs fifty six thousand three hundred and seventy five only) with UPPCB within three months, failing which, recovery proceedings in accordance with law, shall be initiated by the Competent Authority without any further delay.
After recovery of the said amount, respondent shall utilize the same for recovery, restoration and remediation of the environment which has been deteriorated and damaged by dumping hazardous waste comprising Chromium at the questioned site.
II. For the purpose of preparing an action plan for use of amount of environmental compensation for remediation of environment, we constitute a joint Committee comprising UPPCB, CPCB and District Magistrate, Kanpur Dehat who shall prepare the plan for remediation of environment and use of environmental compensation 130 for the said purpose. The Action Plan may contain details activities planned, implementation schedule with specific timeline, budgetary provision for each activities, monitoring mechanism etc. The above plan shall be prepared within two months and executed within next six months from the date of this order.
III. An action taken report with regard to recovery and utilization of the amount recovered shall be submitted to the Registrar General, NGT, Principal Bench, New Delhi by August 2023 and if the Registrar General finds necessary, the matter shall be placed with action taken report for appropriate direction of this Tribunal.
217. All pending IAs shall stand disposed of.
218. A Copy of this order be forwarded to Chief Secretary, UP; Additional Chief Secretary, Industries, UP; Additional Chief Secretary, Environment, UP; CPCB; UPPCB; DM, Kanpur Dehat and Enforcement Directorate by e- mail for information and compliance.
Adarsh Kumar Goel, Chairperson Sudhir Agarwal, Judicial Member Prof. A. Senthil Vel, Expert Member Dr. Afroz Ahmad, Expert Member December 05, 2022 Appeal No. 16/2020 R 131