National Green Tribunal
Tahir Hussain vs State Of Rajasthan on 15 January, 2025
Item No. 07
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Appeal No.02/2024 (CZ)
(I.A.No.13/2024)
Tahir Hussain Appellant(s)
Vs.
State of Rajasthan & Ors. Respondent(s)
Date of Hearing: 15.01.2025
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Appellant(s): Mr. Prakash Pandey, Adv.
For Respondent(s) : Mr. Prashant Sthapak, Adv.
Ms. Vanshika Dubey, Adv.
(for Mr. Vaibhav Thakuria, Adv.)
Mr. Shoeb Hasan Khan, Adv.
ORDER
1. The State Pollution Control Board Respondent No. 3 vide order dated 02.01.2024, issued a notification as follows:-
" d. No Environmental Compensation would be levied for the Back Period for which Consent to operate has been regularised.
e. .....
f....
g....
it is further clarified that this dispensation would also be applicable in case where demand of Environmental Compensation raised on account of "Back Period" is yet to be deposited"
2. The contention of the Learned Counsel for the appellant are that the above notification is in violation of Environment (Protection) Act, 1986, Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention 1 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. and Control of Pollution) Act, 1981 and order passed by this Tribunal in Original Application No. 606/2018.
3. It is further argued that it is in violation of order of Hon'ble the Supreme Court of India reported in 1996 A.I.R. S.C.W., page 3399, Vellore Citizens Welfare Forum Appellant Vs. Union of India & Ors. Respondent.
4. Notices were issued to the Respondents and in compliance thereof, Respondents have filed their reply. A report/expert report and opinion was called from the Regional Director, CPCB, Bhopal, Integral Office and he has submitted the report. We have heard the learned counsel for the parties and perused the record.
5. The submission of the learned counsel for the Respondent No. 2 - CPCB are that the consent to establish and consent to operate to industrial unit is given by concerned State Pollution Control Board in accordance with the Section 21 of the Air (Prevention & Control of Pollution) Act, 1981, which states that, "(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area.... (2) An application for consent of the State Board under sub-section (1) shall be accompanied by such fees as may be prescribed and shall be made in the prescribed form and shall contain the particulars of the industrial plant and such other particulars as may be prescribed." Also, Section 25 of the Water (Prevention & Control of Pollution) Act, 1974, states that, "(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, (a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or (b) bring into use any new or altered outlet for the 2 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. discharge of sewage; or (c) begin to make any new discharge of sewage...
(2) An application for consent of the State Board under sub-section (1) shall be made in such form, contain such particulars and shall be accompanied by such fees as may be prescribed.
6. That in reference to the Hon'ble Tribunal's order dated 31.08.2018 in the matter of O.A. 593/2017 titled Paryavaran Suraksha Samiti & Anr. Vs. Union of India & Ors. a methodology for assessing EC was prepared by CPCB. The said methodology was accepted as an interim measure by the Hon'ble Tribunal vide order dated 28.08.2019. It is submitted that, the above referred methodology considers following cases for levying EC:-
a. Discharges in violation of consent conditions, mainly prescribed standards/ consent limits.
b. Not complying with the directions issued, such as direction for closure due to non-installation of OCEMS, non-
adherence to the action plans submitted etc. c. Intentional avoidance of data submission or data manipulation by tampering the Online Continuous Emission/Effluent Monitoring systems.
d. Accidental discharges lasting for short duration resulting into damage to the environment.
e. Intentional discharges to the environment i.e. land, water and air resulting into acute injury or damage to the environment.
f. Injection of treated/partially treated/ untreated effluents to ground water.
7. Learned Counsel for the State PCB for Respondents No. 3 and 4 has argued that the Rajasthan State Pollution Control Board vide order dated 12.01.2017 had laid down procedure for seeking gap period fees between expiry of consent to operate and date of submission of next consent 3 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. application. Subsequently, State Board vide its order dated 08.01.2020 issued guidelines for imposing Environmental Compensation on defaulter units. It was observed that the mechanism of levying of environmental compensation had been streamlined in the State Board after issuance of the Order dated 08.01.2020. But it had also been observed that there were cases where units were imposed both the monetary penalties i.e. back period fees and environmental compensation for the gap period for which it was in operation without obtaining consent from the State Board.
8. It was observed by the State Board that two types of monetary penalties could not be imposed on the same non-compliance by an industry. With this aim, in order to rationalize the issue and to have parity, the State Board vide its order dated 02.01.2024 issued an order to streamline the procedure of charging Back Period fees and also to clarify the "Back Period" mentioned in Board's order dated 12.01.2017 which was earlier not been clearly defined. As per the State Board Order no. F.14 (5-adm) RSPCB/3018-3024 dated 02.01.2024 the back period is defined as below:-
(i) The period between expiry of consent to operate and date of submission of application for renewal.
(ii) The period between date of commencement of unit and submission of application for consent to operate in fresh cases who have been applied for the first time.
Prior to issuance of this order, back period fee on pro-rata basis for Back Period used to be charged by the State Board. However, it was observed that consent to operate was not considered for the gap period and consequently, unit did not get consent for the gap period despite deposition of back period fee.
9. It is submitted that the State Board is seeking back period fees on defaulter units operating without consent from the State Board, hence the order dated 02.01.2024 is not against the principles of "polluter pay" and 4 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. the judgments of Hon'ble Supreme Court & NGT. Further, levying of another monetary penalty in the form of Environmental Compensation is not justified in such cases. Therefore, the answering Respondent vide its order dated 02.01.2024 seeked additional fee or account of back period during which industry was in operation without consent and further decided to regularize the back period in form of consent. It is pertinent to note that nowhere in the impugned order it is mentioned that the State Board will not impose any Environmental Compensation for past violations, if observed.
10. That RSPCB has not imposed environmental compensation against M/s Focus Energy Limited (Gas Gathering Station) and only Show Cause Notice was issued vide letter dated 25.10.2023, to communicate the estimated amount of Environmental Compensation Rs 3.67 Crores intended to be levied on account of operation of unit without valid consent after expiry of previous consent to operate. The objective of the order dated 02.01.2024 was to streamline the procedure of charging Back Period fees, with the following procedure while processing the consent applications:-
"(a) The Additional consent fee be charged on pro rata basis for gap period of a year or part thereof fee amount per year or part thereof shall be calculated. commensurate to the applicable fee as per notification i.e. 20% (Red) or 10% (Orange) or 6.67% (Green) of the total consent fee as the case may be.
(b) The grant of Consent to Operate be considered for five (Red), ten (Orange) and fifteen (Green) years from date of submission of application and following specific condition shall be incorporated in the renewal letter of Consent to Operate: "This Consent to Operate shall also be considered for the period from.......to"
(c) The grant of Consent to Operate shall be accorded to the units from date of submission of applications which have never applied for consent to operate at the State Board. The 5 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
Back Period fee shall be charged from date of commissioning in such cases after proper verification of the authenticity regarding date of commissioning mentioned by the Project Proponent.
(d) No Environmental Compensation would be levied for the Back Period for which Consent to Operate has been regularised......."
11. The order issued by the State Board dated 02.01.2024 is not applicable on RIICO industrial areas cases as these units are operational without applying consent to establish and consent to operate and fall in "never-
applied category. Further, Regional Office, RSPCB Jaipur (North) issued show cause notice dated 17.11.2023 to SRM, M/s RIICO Ltd. Jaipur for intended directions for deposition of Environmental Compensation on grounds of operating without obtaining CTE/ CTO under the provision of Air Act, 1981 & Water Act, 1974 from the State Board. The State Board vide letters dated 25.08.2023 & 08.11.2023 had also directed Managing Director, RIICO to apply & obtain CTE/CTO (where CТЕ/СТО has not been obtained so far) and to apply CTO by 15.11.2023 (where CTE has been obtained earlier) as applicable under the provision of Air Act, 1981 & Water Act, 1974. Subsequently, Chairman, RIICO vide Letter dated 13.03.2024 has informed the State Board that opinion of Sh Rajendra Prasad, Advocate General, Rajasthan has been sought in the matter by RIICO and it is intimated that RIICO is not required to obtain compensation was proposed in this case only on the grounds on operation without consent after expiry of previous consent to operate, no other serious violation was reported in this case. Thereafter, M/s Focus Energy Limited had challenged the grounds of Show cause notice vide its reply dated 24.11.2023 and raised the issue of uniformity amongst similarly placed cases wherein consent to operate is applied after expiry and being issued by the State Board after charging back period fees only. The 6 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. industry requested to not consider the case with other serious violators on which environmental compensation is being imposed by the State Board.
In light of the industry's reply the matter was deliberated in the State Board and it was observed that there were cases where units were granted consent by the State Board only on the basis of charging back period fees as per order dated 12.01.2017 and no environmental compensation was levied on the industries.
12. It is further argued that order issued dated 02.01.2024 is regarding streamlining the procedure of seeking back period fees in cases, industry is found to be in operation without seeking consent from the State Board after expiry of previous consent. The phrase "No Environmental Compensation would be levied for the Back Period for which Consent to Operate has been regularised in the referred order dated 02.01.2024 Consent to Establish/ Operate for its industrial areas, requested to withdraw notices issues to RIICO Unit Offices for not obtaining CTE/CTO.
However, the State Board is pursuant in getting RIICO obtain consent for the Strate Board for its industrial areas and forwarded the matter to Central Pollution Control Board for examination and guidance. That the CPCB vide its letter dated 07.05.2024 informed RSPCB that the industrial estates are required to obtain consent as per the categorization of the CPCB and the State Board, issued from time to time which was communicated to Managing Director, RIICO on 08.07.2024. To ensure prompt compliance of Water and Air Acts in case of RIICO industrial areas, State Board has issued directions for imposition of environmental compensation of Rs 6.54 Crores to RIICO vide letters dated 08.01.2024 and 02.02.2024. Further, show cause notice for intended directions for imposition of Environmental Compensation of Rs. 4,82,89,000/- has been issued by RSPCB dated 08.07.2024 to RIICO Ltd, Bichhwal Industrial Area, Bikaner.
7Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
13. The matter was referred to the Regional Director, Central Pollution Control Board with the direction to go through the guidelines of the CPCB and the NGT, in view of the order of Hon'ble Supreme Court of India and to formulate a committee of the competent officials dealing with the matter and examine the report and notification issued by the State PCB and to submit the opinion. The Regional Director, CPCB constituted a committee of scientists and submitted the report with the following facts:-
a) "The Water (Prevention and Control of Pollution) Act, 1974, The Air (Prevention and Control of Pollution) Act, 1981 and The Environmental (Protection) Act, 1986 stipulate that an industry is required to obtain Consent to Establish (CTE), Consent to Operate (CTO) and applicable clearances & permissions from the State Pollution Control Board before commencing operation.
Further, there are provisions for punitive action in case of violation. The key provisions are presented below:
1) The Water (Prevention and Control of Pollution) Act, 1974 (hereafter referred as the Water Act) • Section 25 and 26 of the Water Act, 1974 states that no person shall, without the prior consent of the SPCB, establish or take steps to establish any industry, operation, or process likely to discharge sewage or trade effluent into a stream, well, sewer, or land.
• Actions in case of violation as per the amended Water Act, 1974 are:
▪ Under Section 44, a person shall be liable to pay penalty which shall not be less than ten thousand rupees, but which may extend to fifteen lakh rupees on contravention of section 25 or section 26.
▪ Under Section 45 (A), if any person contravenes any of the provisions of this Act or any order or direction issued thereunder, 8 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
for which no penalty has been provided for in this Act, shall be liable to pay the penalty which shall not be less than ten thousand rupees, but which may extend to fifteen lakh rupees, and where such contravention continues, he shall be liable to pay an additional penalty which may extend to ten thousand rupees for every day during which such contravention continues.
▪ Section 45 (E)(1) Whoever fails to comply with the provisions of section 25 or section 26, in respect of each such failure, shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to fifty thousand rupees for every day during which such failure continues after the conviction for the first such failure.
2) The Air (Prevention and Control of Pollution) Act, 1981.
• Section 21 of the Air Act, 1981 mandates that no person shall establish or operate any industrial plant in an air pollution control area unless the previous consent of the State Board has been obtained in pursuance of an application made by such person in accordance with the provisions of this section, provided that the Central Government may in consultation with the Central Pollution Control Board, by notification in the Official Gazette, exempt certain categories of industrial plants from the application of the provisions of this sub-section.
• Action in case of violation as per The Jan Vishwas (Amendment of Provisions) Act, 2023 which amends the Air Act, 1981 are:
9Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
▪ Section 39, If any person contravenes any of the provisions of this Act or any order or direction issued thereunder, for which no penalty has been provided for in this Act, shall be liable to penalty which shall not be less than ten thousand rupees, but which may extend to fifteen lakh rupees, and where such contravention continues, he shall be liable to additional penalty which may extend to ten thousand rupees for every day during which such contravention continues.
▪ Section 39 (D) (1), Offences for failure to comply with provisions of section 21 and for failure to pay penalty.--(1) Whoever fails to comply with the provisions of section 21, shall, in respect of each such failure, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to fifty thousand rupees for every day during which such failure continues after the conviction for the first such failure.
3. The Environment (Protection) Act, 1986 • Section 3 and Section 7: These sections empower the Central Government to regulate industries and prohibit the discharge of pollutants in excess of prescribed standards. Industries are required to obtain environmental clearances and permissions.
• Action in case of violation as per The Jan Vishwas (Amendment of Provisions) Act, 2023 which amends the E (P) Act, 1986 are:
▪ Section 14A, if any person contravenes provisions of section 7 or the rules made thereunder, he shall be liable to penalty in 10 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
respect of each such contravention, which shall not be less than one lakh rupees but which may extend to fifteen lakh rupees. In case the failure or contravention continues, he shall be liable to additional penalty of fifty thousand rupees for every day during which such contravention continues.
▪ Section 15, if any person contravenes or does not comply with any of the provisions of this Act or the rules made or orders or directions issued thereunder for which no penalty is provided, he shall be liable to penalty in respect of each such contravention which shall not be less than ten thousand rupees but which may extend to fifteen lakh rupees. In case the failure or contravention continues, he shall be liable to additional penalty of ten thousand rupees for every day during which such contravention continues.
▪ Section15 (A) if any company contravenes any of the provisions of this Act, the company shall be liable to penalty for each such contravention which shall not be less than one lakh rupees but which may extend to fifteen lakh rupees. In case company continues contravention, the company shall be liable to additional penalty of one lakh rupees for every day during which such contravention continues.
▪ Section 15 (F) (1) Offence for failure to pay penalty or additional penalty- (1) Where any person fails to pay the penalty or additional penalty, as the case may be, under sections 14A, 14B, 15, 15A or section 15B within ninety days of such imposition, he shall be liable for imprisonment which may extend to three years 11 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
or with fine which may extend to twice the amount of the penalty or with both.
These provisions are enforced to ensure that the industries comply with environmental standards and obtain mandatory consents & permissions before commencing operations.
To summarize, in case of violations, such as not having Environmental Clearance (EC) or Consent to Establish/ Operate (CTE/CTO) or violation of the prescribed conditions, with potential to cause direct or indirect environmental damage or any other violation of this nature, the Section 45 (A) of the Water Act, 1974, Section 39 of the Air Act, 1981 and Section 15 of E(P)Act, 1986, state that, "if any person contravenes any of the provisions of these Acts or any order or direction issued thereunder, for which no penalty has been provided for in these Act, shall be liable to pay the penalty which shall not be less than ten thousand rupees, but which may extend to fifteen lacs rupees, and where such contravention continues, he shall be liable to pay an additional penalty which may extend to ten thousand rupees for every day during which such contravention continues.
3.0 Principles in Environmental Law National Green Tribunal in its numerous orders and judgements has emphasized on various principles for strengthening environmental governance and set accountability for environmental damage.
• "The Polluter Pays Principle" states that those who cause environmental damage should bear the costs of managing it to prevent harm to human health or the environment. Polluters are required to pay for the cleanup and restoration of the environment, which can include fines, remediation costs, and compensation for affected communities. Various NGT rulings have set precedents where industries have been directed to pay compensation based on the extent of pollution caused.
12Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
• "Public Trust Doctrine": NGT orders invoke the Public Trust Doctrine to prevent over exploitation of natural resources and to mandate sustainable development practices. The government has responsibility to protect natural resources for public use and cannot allow private entities to operate in a manner that harms the environment. The NGT has applied this doctrine in various cases involving water bodies, forests, and air quality, asserting that any activity that depletes or damages these resources can be challenged legally.
It is submitted that granting of retrospective consents and regularizing back period violates these principles.
4. Previous orders of Hon'ble Supreme Court and NGT in inter- alia matters related to operation without statutory permission and environmental compensation thereunder There are several important cases where the National Green Tribunal and the Hon'ble Supreme Court of India have questioned the regularization of consent for industries operating without mandatory environmental clearances and/or consents. A few landmark cases and orders in this regard are presented below:
• Sterlite Industries Case (Vedanta Ltd. vs. State of Tamil Nadu and Others, Special Leave Petition (Civil) Nos 10159-10168 OF 2020 Sterlite Industries (a subsidiary of Vedanta) had operated its copper smelter plant in violation to the environmental norms and without consents under the Water Act and Air Act. The Hon'ble Supreme Court took a strict stance on non-compliance, stating that industries cannot be allowed to operate without the requisite prior consent. The court upheld the closure order issued by the Tamil Nadu Pollution Control Board (TNPCB), rejecting any possibility of regularizing past violations.13
Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
• Alembic Pharmaceuticals Ltd. vs. Rohit Prajapati & Ors (1.4.2020) Civil Appeal No. 1526 of 2016 In this matter, the Hon'ble Supreme Court ordered that while industries should be held accountable for operating without environmental clearances, the closure of operations as directed by the NGT was disproportionate. Instead, the Hon'ble court imposed a compensation of ₹ 10 crores each on Alembic Pharmaceuticals Limited, United Phosphorous Limited, and Unique Chemicals Limited, to be used for environmental restoration. The Hon'ble court emphasized that penalties are necessary to deter non-compliance with legal requirements and issued these directions under Article 142 of the Constitution. This ruling set aside the NGT's decision to revoke environmental clearances and close the industries, but reinforced the principle of environmental accountability through financial compensation.
• L.G. Polymer Gas Leak Case (O.A. 73 of 2020 order dated 4.6.2020) The NGT took Suo moto cognizance of the Vishakhapatnam gas leak at L.G. Polymers India, which had been operating without valid environmental clearance. The order dated 4th June 2020 state at Para 36 as "Safety of citizens and environment are of prime concern. Any economic or industrial activity, however necessary, has to be consistent with the safety of human beings and the environment. The damage to human life, human health and environment has to be restored by applying the 'Sustainable Development' principle, of which 'Precautionary' and 'Polluter Pays' principles are part. In this regard, significant role has to be played by the statutory authorities constituted under the Water (Prevention and Control of 38 Pollution) 14 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986".
• Common Cause vs. Union of India case WRIT PETITION (CIVIL) NO. 114 of 2014 order dated 2.8.2017.
• The case involved illegal mining operations in Odisha, where mining companies operated without obtaining the necessary environmental clearances. The Hon'ble Supreme Court held that companies cannot continue operations in the absence of clearances, and the court ordered the payment of compensation under the polluter pays principle for damage caused during the non-compliance period. This case firmed that no retrospective clearances or consents should be allowed, and industries must be penalized for operating without the necessary legal permissions.
5. CPCB methodology for imposing Environmental Compensation The National Green Tribunal (NGT), Principal Bench in the matter of OA No. 593/2017 (WP (CIVIL) No. 375/2012, Paryavaran Suraksha Samiti & Anr. Vs. Union of India & Ors. directed Central Pollution Control Board (CPCB) that:
"The CPCB may take penal action for failure, if any, against those accountable for setting up and maintaining STPs, CETPs and ETPs. CPCB may also assess and recover compensation for damage to the environment and said fund may be kept in a separate account and utilized in terms of an action plan for protection of the environment. Such action plan may be prepared by the CPCB within three months".
In compliance to this, CPCB issued "Methodology for Assessing Environmental Compensation and Action Plan to 15 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
Utilize the Fund" in August, 2019 where following cases are considered for levying of Environmental Compensation:
a) Discharges in violation of consent conditions, mainly prescribed standards / consent limits.
b) Not complying with the directions issued, such as direction for closure due to non-installation of OCEMS, non-adherence to the action plans submitted etc.
c) Intentional avoidance of data submission or data manipulation by tampering the Online Continuous Emission/Effluent monitoring systems.
d) Accidental discharges lasting for short durations resulting into damage to the environment.
e) Intentional discharges to the environment -- land, water and air resulting into acute injury or damage to the environment.
f) Injection of treated/partially treated/ untreated effluents to ground water.
The CPCB's methodology for assessing Environmental Compensation has not accounted for cases where units are found operating without CTE and CTO, or units operating after the expiration of CTO. As according to the regulatory provisions, obtaining the necessary consents and clearance before initiating operations is a mandatory requirement that must be strictly adhered to. Thus, if an industry is found operating without the necessary permits/ clearance, it should be closed down.
• Rajasthan Pollution Control Board Mechanism for levying Environmental Compensation NGT in OA No. 710/ 2017 Order dated 12.03.2019 directed that SPCBs are authorized to recover compensation from the polluters or laying down their own scale which should not be less than the scale fixed by CPCB. RSPCB vide its order dated 08.01.2020 issued "Mechanism of Calculation, Imposition & Recovery of Environmental Compensation" for 16 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
defaulter units. As per the point no. 3 (8) of this document, cases to be considered for levying Environmental Compensation include, "Operating without obtaining prior consent to operate under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981."
As per RSPCB order dated 08.01.2020, Environmental Compensation shall be imposed on the defaulter units which are operating without CTO or have not applied for renewal of CTO after its expiry. The RSPCB Order dated 02.01.2024 is not in-line with this condition of the issued mechanism.
In RSPCB's order dated 02.01.2024, the cases where non- compliance is observed w.r.t. units operating without obtaining CTO or after expiry of CTO, instead the State Board had proposed charging penalty as 'Back Period fee' on pro-rata basis.
The Back Period is defined in the order as:
• The period between expiry of consent to operate and date of submission of application for renewal.
• The period between date of commencement of unit and submission of application for consent to operate in fresh cases.
• In this regard, Regional Directorate, CPCB, Bhopal sought clarification with the RSPCB and discussed on the matter. It was clarified by the RSPCB that the office order dated 02.01.2024 was issued to streamline the entire procedure for levying environmental compensation on defaulter units. It had been observed that there were cases where units were imposed both the penalty i.e. back period fees and environmental compensation for the gap period for which the units were found operating without obtaining consent from the State Board. So, in order to address the issue, the State Board has passed order dated 02.01.2024.17
Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
• The RSPCB's above referred office order dated 02.01.2024 was discussed in the 152nd Meeting of the Board, wherein it was duly acknowledged and appreciated by the Board members.
7. Submissions of Internal Committee constituted in compliance of Hon'ble NGT Order dated 18.09.2024
1. The committee is of view that obtaining Consent to Establish (CTE) and Consent to Operate (CTO) are the statutory requirements which come under the legal framework for establishment and operation of any unit under the Section 25 of Water (Prevention & Control of Pollution) Act, 1974 and under Section 21 of Air (Prevention & Control of Pollution) Act, 1981.
If an industry is operating without obtaining statutory permissions, regularizing the past period for such defaulter units by charging back-period fees violates the provisions under the Water (prevention & Control of Pollution) Act, 1974 and the Air (prevention & Control of Pollution) Act, 1981.
2. Regularizing defaulter units that have been operating without a valid CTO by imposing "back-period" fees permits these units to operate without accountability for any environmental harm that may have arisen during their unauthorized operations, often conducted without the Pollution Control Board's knowledge. Therefore, it is essential to impose both penalty (in this case, through back-period fees) as a deterrent factor and an Environmental Compensation after case-to- case basis damage assessment to account for damages that have occurred during the period of unauthorized operation.
3. Hon'ble courts in several past inter-alia matters have emphasized that no retrospective regularization shall be considered as these actions violate environmental laws and should not be regularized without accountability. Both the Hon'ble Supreme Court and NGT have consistently held that industries cannot be granted retrospective clearances or 18 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
consents under the Water Act, the Air Act, or the Environment (Protection) Act. Prior consent is mandatory. In view of above, it is submitted that regularization of any industry from back period is a violation of environmental laws.
4. The committee submits that granting of retrospective permissions by charging back period fees undermines the consent related regulatory provisions and are not in consonance with the Polluters pay principle and public trust doctrine.
5. The cases of environmental violation where it is difficult to assess the time period for violation, as per Hon'ble NGT order dated 10.07.2019 in OA No. 1038 of 2018 (News item published in "The Asian Age" Authored by Sanjay Kaw Titled "CPCB to rank industrial units on pollution levels"), the Environmental Compensation shall be recovered from such identified polluters at least for five years which is the period specified under Section 15(3) of the National Green Tribunal Act, 2010.
6. In specific cases, where the grave violations are observed and State Board is in the view that damages caused to the environment are of such magnitude that it may require enormous efforts/ money to restore the environment or compensate the affected masses till such restoration completed, a detailed study may be carried out by the Board or by engaging some expert agencies/ institutes to assess such damages and calculate the environmental compensation and cost of restoration to be levied on the polluters. The legal prosecution may also be initiated against such defaulter units.
8. Conclusion:
The CPCB's methodology for assessing Environmental Compensation does not account for cases where units are found operating without CTE and CTO, or units operating after the expiration of CTO. As according to the regulatory provisions, obtaining the necessary consents and clearance before initiating 19 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
operations is a mandatory requirement that must be strictly adhered to. Thus, if an industry is found operating without the necessary permits/ clearance, it should be closed down.
Further, regularizing such defaulter units that have been operating without a valid CTO by imposing "back-period" fees permits these units to operate without accountability for any environmental harm that may have arisen during their unauthorized operations. Therefore, it is essential to impose both penalty as a deterrent factor and an Environmental Compensation on case-to-case basis where environmental damages may have occurred during the period of unauthorized operation."
14. It is submitted by learned counsel for the appellant that the latest notification exempting from the Environmental Compensation to the polluters is against the Principle of Polluter to Pay and further in contravention of its own order issued by the State PCB. The State PCB, Rajasthan, vide order dated 12.01.2017 has directed that the deposition of consent fee for the gap period shall not entitle the project proponent for ex-post facto consent for the said period and the State Board reserves the right to initiate legal proceedings in accordance with law against the unit for operating without obtaining prior consent to operate during this period. Further vide in another order dated 25.06.2019, the office order has been issued clarifying the position of the State PCB in compliance of the order of Hon'ble the Supreme Court of India passed in Writ Petition No. (Civil) 375/2012 Paryavaran Suraksha Samiti & Anr. Vs. Union of India & Ors. and in light of the Original Application No. 606/2018 for compliance of the Municipal Solid Waste Management Rules, 2016 and the Principle of Polluted Pay principle was adopted for realizing the Environmental Compensation.
15. The contention of the learned counsel for the appellant are that Hon'ble Supreme Court In case Of Vellore Citizens Welfare Forum Appellant v.20
Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. Union of India and others Respondents (1996 AIR SCW 3399) held that :-
"13. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country."
16. In Original Application No. 606/2018 this Tribunal has held that :-
"37. In view of the aforesaid, it is essential to evaluate the damages caused to the environment and cost required for its restoration. This is a mandate under the "Polluter Pays"
principle which is in accordance with Section 20 of National Green Tribunal Act, 2010 and Article 21 of the Constitution of India. Therefore, we direct the State of Tamil Nadu to estimate the cost of damages in such cases and recover compensation from the polluters for restoration/restitution.
38. We also find that scales of compensation recovered from polluters is not adequate. The same has to be deterrent and adequate to meet cost required for restoration of environment. The State of Tamil Nadu needs to estimate the cost of restoring the damages and recover compensation from the polluters which may be adequate for restoration/restitution. Policy to proceed against polluters has to be stern having regard to impact of pollution of life and health as well as ecology."
17. It is further argued that Environmental Damage Compensation (EDC) is a quantifiable and reasonably estimable future expenditure as on date for restoration of environmental damages caused due to anthropogenic release of pollutants in excess of permissible limits or unauthorised activity. Environmental damage compensation is apportioned to one or more factors relating to degradation of air quality, water resources, soil, groundwater, adverse effect on human health, loss of eco-system services, 21 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. including damages caused to property, natural assets and productive assets. Thus, EDC includes cost of assessments, cost of restoration and compensation for direct and indirect damages caused to human, property, flora, fauna including ecosystem functions.
18. Quantification of ecological damages is analytical measure of the extent, severity and duration of the damage in terms of alteration, which is an adverse variation with respect to the baseline condition of the natural resources and services; deterioration, which is a partial loss of the ability of the natural resource to provide an ecological or public service; partial destruction, which is the loss of one or more services; and total destruction, which is the loss of all the services and that Environmental Damage Compensation comprises of (i) assessment obligation, (ii) remediation obligation (iii) restoration obligation (iv) compensation to affected third party (v) obligation to compensate damage to natural resources.
19. Learned counsel for the appellant has further argued that the order under challenge is in contravention of previous order of the Respondent No. 3 meant for mechanism of calculation, imposition and recovery of environmental compensation where in para 7 it has been specifically mentioned that no new renewal of CTE/CTO of the defaulter shall be entertained until and unless EC is deposited. Above provision clarifies that deposition of environmental compensation is mandatory and CTE and CTO cannot be renewed unless and until environmental compensation is paid. The annexure enclosed as annexure A-3 discloses that more than 400 industries/units are being operated without any valid permission from the authority or CTE/CTO and when the matter was raised in repeated applications before this Tribunal then the State Pollution Control Board issued a direction to the authority consent to ensure and coordinate to apply and obtain CTE and CTO under the 22 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. prevention of Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 for all the industrial areas and units.
20. The matter of Environment (Protection) Act, 1986 and its violation and action which are required to be taken has been discussed by Hon'ble the Supreme Court of India in 1996 AIR SCW 3399 titled Vellore Citizens Welfare Forum Petitioner Vs. Union of India & Ors.. Relevant paras are quoted below :-
i. "The traditional concept that development and ecology are opposed to each other, is no longer acceptable. "Sustainable Development" is the answer. In the International sphere "Sustainable Development" as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called "Our Common Future". The Commission was chaired by the then Prime Minister of Norway Ms. G. H. Brundtland and as such the report is popularly known as "Brundtland Report". In 1991 the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, Jointly came out with a document called "Caring for the Earth" which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio which saw the largest gathering of world leaders ever in the history - deliberating and chalking out a blue print for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions were signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to 23 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
Rio "Sustainable Development" has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. "Sustainable Development" as defined by the Brundtland Report means "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable Development" as a balancing concept between ecology and development has been accepted as a part of the Customary International law though its salient features have yet to be finalised by the International law Jurists.
ii. Some of the salient principles of "Sustainable Development", as called-out from Brundtland Report and other international documents, are Inter Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, obligation to assist and co-operate, Eradication of Poverty and, Financial Assistance to the developing countries. We are, however, of the view that "The Precautionary Principle" and "The Polluter Pays" principle are essential features of "Sustainable Development." The "Precautionary Principle" in the context of the municipal law means :
i. Environmental measures - by the State Government and the statutory authorities-must anticipate, prevent and attack the causes of environmental degradation.
ii. Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
iii. The "Onus of proof' is on the actor or The developer/industrialist to show that his action is environmentally benign. "The Polluter Pays" principle has been held to be a sound principle by this Court in 24 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
Indian Council for Enviro Legal Action v. Union of India, (1996) 2JT (SC) 196: (1996 AIR SCW 1069). The Court observed, "We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country". The Court ruled that "Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact Whether he took reasonable care While carrying on his activity. The rule is premised upon the very nature of the activity carried on". Consequently the polluting industries are ''absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas".
The ''Polluter Pays'' principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of ''Sustainable Development'' and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
iv. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the constitution of India guarantees protection of life and personal liberty. Articles 47. 48A and 51A(g) of the Constitution are as under :
"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and in particular, the State shall 25 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
endeavour to bring about prohibition of the
consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.
48A. Protection and improvement of environment and safeguarding of forests and wild life - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.
51A(g). To protect and improve the natural environment including forests, lakes rivers and wild life, and to have compassion for living creatures."
Apart form the constitutional mandate to protect and improve the environment there are plenty of post independence legislations on the subject but more relevant enactments for our purpose are: The Water (Prevention and Control of pollution) Act, 1974 (the Water Act). The Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment Protection Act 1986 (the Environment Act). The Water Act provides for the constitution of the Central Pollution Control Board by the Central Government and the constitution of the State Pollution Control Boards by various State Governments in the Country.
The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. Also provides for restrictions of outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central pollution Control board and the State Pollution Control Boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve 26 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
the quality of the air and to prevent, control and abate air pollution in the country. We shall deal with the Environment Act in the later part of this judgment.
v. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.
vi. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. To support we may refer to Justice H. R. Khans' opinion in Addl. Distt. Magistrate Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, Joly George Varghese's case, AIR 1980 SC 470 and Gramophone Company' case, AIR 1984 SC 667.
vii. The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment. It would be useful to quote a paragraph from Blackstone's commentaries on the Laws of England (Commentaries on the Laws of England of Sir William BlackStone) Vol. III. fourth edition published in 1876. Chapter XIII, ''Of Nuisance'' depicts the law on the subject in the following words. ''Also, if a person keeps his hogs, or other noisome animals, or allows filth to accumulate on his premises, so near the house of another, that the stench incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. A like injury is, if one's neighbour sets up and exercises any offensive trade, as a tanner's, a tallow-chandler's, or the like; for though these are lawful and necessary trades, yet they should be exercised in remote places; for the rule is, sic utere "tuo, ut alienum non laedas", this therefore is an actionable nuisance.
27Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
And on a similar principle a constant ringing of bells in one's immediate neighbourhood may be a nuisance.. With regard to other corporeal heriditaments; it is a nuisance to stop or divert water that used to run to another's meadow or mill; to corrupt or poison a water-course, by erecting a dye house or a lime-pit, for the use of trade, in the upper part of the stream; 'to pollute a pond, from which another is entitled to water his cattle, to obstruct a drain; or in short to do any act in common property, that in its consequences must necessarily tend to the prejudice on one's neighbour. So closely does the law of England enforce that excellent rule of gospel-morality, of "doing to others, as we would they should do unto ourselves".
viii. Our legal system having been founded on the British Common Law the right of a person to pollution free environment is a part of the basic jurisprudence of the land.
ix. The Statement of Objects and Reasons to the Environment Act, inter alia, states as under :
"The decline in environmental quality has been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support systems. The world community's resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June, 1972. Government of India participated in the conference and strongly voiced the environmental concerns. While several measures have been taken for environmental protection both before and after the conference, the need for a general legislation further to implement the decisions of the Conference has become increasingly evidence... Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some Major areas of 28 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
environmental hazardous are not covered. There also exist uncovered gaps in areas of major environmental hazards. There are inadequate linkages in handling matters of industrial and environmental safety. Control mechanisms to guard against slow, insidious build up of hazardous substances, especially new chemicals, in the environment are weak. Because of a multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long-term requirements of environmental safety and to give direction to, and co- ordinate a system of speedy and adequate response to emergency situations threatening the environment...In view of what has been stated above, there is urgent need for the enactment of a general legislation on environmental protection which inter alia, should enable co-ordination of activities of the various regulatory agencies, creation of an authority or authorities with adequate powers for environmental protection, regulation of discharge of environmental pollutants and handling of hazardous substances, speedy response in the event of accidents threatening environment and deterrent punishment to those who endanger human environment, safety and health.
Sections 3, 4, 5, 7 and 8 of the Environment Act which are relevant are as under :
"3. Power of Central Government to take measures to protect and improve environment. -
(1) Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.
(2) In particular, and without prejudice to the generality of the provisions of section (1), such measures may include 29 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
measures with respect to all or any of the following matters, namely :-
(i) co-ordination of actions by the State Governments, officers and other authorities -
(a) under this Act, or the rules made thereunder, or
(b) under any other law for the time being in force which is relatable to the objects of this Act;
(ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution;
(iii) laying down standards for the quality of environment in its various aspects;
(iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever:
Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;
(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;
(vi) laying down procedures and safeguards for the prevention or accidents which may cause environmental pollution and remedial measures for such accidents;
(vii) laying down procedures and safeguards for the handling of hazardous substances;
(viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution;30
Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
(x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;
(xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;
(xii) collection and dissemination of information in respect of matters relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;
(xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.
(3) The Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under S.5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-sec. (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures.
4. Appointment of officers and their powers and functions (1) Without prejudice to the provisions of sub-section (3) of S. 3, the Central Government may appoint officers with such designations 31 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
as it thinks fit for the purposes of this Act and may entrust to them such of the powers and functions under this Act as it may deem fit. (2) The officers appointed under sub-section (1) Shall be subject to the general control and direction of the Central Government or, if so directed by that Government, also of the authority or authorities, if any, constituted under sub-section (3) of S. 3 or of any other authority or officer."
5. Power to give directions. - Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
Explanation. - For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct -
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) stoppage or regulation of the supply of electricity or water or another service.
6. Persons carrying on industry, operation etc. not to allow emission or discharge of environmental pollutants in excess if the standards. - No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed.
7. Persons handling hazardous substances to comply with procedural safeguards.- No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed".
ix. Rules 3(1), 3(2)and 5(1)of the Environment (protection) Rules, 1986 (the Rules) are as under:
32Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
"3. Standards for emission or discharge of environmental pollutants. - (1) For the purposes of protecting and improving the quality of the environmental and preventing and abating environmental pollutants, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in (Schedules 1 to IV).
3(2) Notwithstanding anything contained in sub-rule (1), the Central Board or a State Board may specify more stringent standards from those provided in (Schedules 1 to IV) in respect of any specific industry, operation or process depending upon the quality of the recipient system and after recording reasons, therefor, in writing.
5. Prohibition and restriction on the location of industries and the carrying on processes and operations in different areas. - (1) The Central Government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operation in different areas :-
(i) Standards for quality of environment in its various aspects laid down for an area.
(ii) The maximum allowable limits of concentration of various environment pollutants (including noise) for an area.
(iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an area.
(v) The biological diversity of the area which, in the opinion of the Central Government, needs to be preserved.
(vi) Environmentally compatible land use.
(vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted.
(viii) Proximity to a protected area under the Ancient Monuments And Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified, as such under the Wild Life (Protection) Act, 1972, or places protected under any treaty, agreement or convention with any other country or countries or in 33 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
pursuance of any decisions made in the any international conference, association or other body.
(ix) Proximity to human settlements.
(x) Any other factors as may be considered by the Central Government to be relevant to the protection of the environment in an area.
x. It is thus obvious that the Environment Act contains useful provisions for controlling pollution. The main purpose of the Act is to create an authority or authorities under S.3 (3) of the Act with adequate powers to control pollution and protect the environment. It is a pity that till date no authority has been constituted by the Central Government. The work which is required to be done by an authority in terms of S.3(3) read with other provisions of the Act is being done by this court and the other Courts in the country. It is high time that the Central Government realises its responsibility and statutory duty to protect the degrading environment in the country. If the conditions in the five districts of Tamil Nadu, where tanneries are operating, are permitted to continue then in the near future all rivers/canals shall be polluted, underground waters contaminated, agricultural lands turned barren and the residents of the area exposed to serious diseases. It is, therefore, necessary for this Court to direct the Central Government to take immediate action under the provisions of the Environment Act.
8. Mr. M. C. Mehta, learned counsel for the petitioner has invited our attention to the Notification GOMs. No. 213 dated March 30, 1989 which reads as under :
"Order:-
1. In the Government order first read above, the Government have ordered, among other things, that no industry causing serious water pollution should be permitted within one kilometer from the embankments of rivers, streams, dams etc. and that the Tamil Nadu pollution control Board should furnish a list of such industries to all 34 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
local bodies. It has been suggested that it is necessary to have a sharper definition for water sources so that ephemeral water collections like rain water ponds, drains, sewerages (bio-degradable) etc. may be excluded from the purview of the above order. The Chairman, Tamil Nadu pollution control Board has stated that the scope of the Government order may be restricted to reservoirs, rivers and public drinking water sources. He has also stated that there should be a complete ban on location of highly polluting industries within I kilometer of certain sources.
2. The Government have carefully examined the above suggestions. The Government impose a total ban on the setting up of the highly polluting industries mentioned in Annexure-I to this order within one kilometer from the embankments of the water sources mentioned in Annexure- II to this order.
3. The Government also direct that under any circumstance if any highly polluting industry is proposed to be set up within one kilometer from the embankments of water sources other than those mentioned in Annexure-II to this order, the Tamil Nadu Pollution Control Board should examine the case and obtain the approval of the Government for it."
Annexure- 1 to the Notification includes distilleries, tanneries, fertilizer, steel plants and foundries as the highly polluting industries. We have our doubts whether the above quoted Government order is being enforced by the Tamil Nadu Government. The order has been issued to control pollution and protect the environment. We are of the view that the order should be strictly enforced and no industry listed in Annexure-I to the order should be permitted to be set up in the prohibited area.
9. Keeping in view the scenario discussed by us in this judgment, we order and direct as under :
35Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
1. The Central Government shall constitute an authority under S.3 (3) of the Environment (Protection) Act, 1986 and shall confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The authority shall be headed by retired judge of the High Court and it may have other members-
preferably with expertise in the field of pollution control and environment protection - to be appointed by the Central Government. The Central Government shall confer on the said authority the powers to issue directions under S. 5 of the Environment Act and for taking measures with respect to the matters referred to in Cls. (v), (vi), (vii), (viii), (ix), (x) and (xii) of subsection (2) of S. 3 the Central Government shall constitute the authority before September 30, 1996.
2. The authority so constituted by the Central Government shall implement the "precautionary principle" and the "polluter pays" principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/ families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.
3. The authority shall compute the compensation under two heads namely, for reversing the ecology and for payment to individuals. A statement showing the total amount to be recovered, the names of the polluters from whom the amounts is to be recovered, the amount to be recovered from each polluter, the persons to whom the compensation is to be paid and the amount payable to each of them shall be forwarded to the Collector/District Magistrates of the 36 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
area concerned. The Collector/District Magistrate shall recover the amount from the polluters, if necessary, as arrears of land revenue. He shall disburse the compensation awarded by the authority to the affected persons/families.
4. The authority shall direct the closure of the industry owned/managed by a polluter in case he evades or refused to pay the compensation awarded against him. This shall be in addition to the recovery from him as arrears of land revenue.
10. We direct the Superintendent of Police and the Collector/District Magistrate/Deputy Commissioner of the district concerned to close all those tanneries with immediate effect who fail to obtain the consent from the Board by the said date. Such tanneries shall not be reopened unless the authority permits them to do so. It would be open to the authority to close such tanneries permanently or to direct their relocation."
21. The matter of compliances of the environment rules was discussed in OA No. 606/2018 vide order dated 23.04.2019, relevant paras are quoted below :-
i. "It has been observed by the Hon'ble Supreme Court in Almitra H. Patel and Anr. v. Union of India and Ors.3 that the local authorities constituted for providing services to the citizens are lethargic and insufficient in their functioning which is impermissible. Non-accountability has led to lack of effort on the part of the employees. Domestic garbage and sewage along with poor drainage system in an unplanned manner contribute heavily to the problem of solid waste. The number of slums of multiplied significantly occupying large areas of public land. Promise of free land attracts more land grabbers. Instead of "slum clearance" there is "slum creation" in cities which is further aggravating the problem of domestic waste being strewn in the open. Accordingly, the Court directed that provisions pertaining to sanitation and public health under the DMC Act, 37 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
1957, the New Delhi Municipal Council Act, 1994 and Cantonments Act, 1994 be complied with, streets and public premises be cleaned daily, statutory authorities levy and recover charges from any person violating laws and ensure scientific disposal of waste, landfill sites be identified keeping in mind requirement of the city for next 20 years and environmental considerations, sites be identified for setting up of compost plants, steps be taken to prevent fresh encroachments and compliance report be submitted within eight weeks.
ii. The Hon'ble Supreme Court again in Almitra H. Patel and Anr.
v. Union of India and Ors.4 while further reviewing the progress noted the following suggestions for consideration by the State Governments and Central Government and SPCBs/PCCs:-
1. As a result of the Hon'ble Supreme Court's orders on 26.7.2004, in Maharashtra the number of authorizations granted for solid waste management (SWM) has increased from 32% to 98%, in Gujarat from 58% to 92% and in M.P. from NIL to 34%. No affidavits at all have been received from the 24 other States/UTs for which CPCB reported NIL or less than 3% authorisations in February 2004. All these States and their SPCBs can study and learn from Karnataka, Maharashtra and Gujarat's successes.
2. All States/UTs and their SPCBs/PCCs have totally ignored the improvement of existing open dumps, due by 31.12.2001, let alone identifying and monitoring the existing sites. Simple steps can be taken immediately at almost no cost by every single ULB to prevent monsoon water percolation through the heaps, which produces highly polluting black run- off(leachate). Waste heaps can be made convex to eliminate standing water, upslope diversion drains can prevent water inflow, downslope diversion drains can capture leachate for recirculation onto the heaps, 38 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
and disused heaps can be given soil cover for vegetative healing.
3. Lack of funds is no excuse for inaction. Smaller towns in every State should go and learn from Suryapet in A.P. (population 103,000) and Namakkal in T.N. (population 53,000) which have both seen dustbin- free 'zero garbage towns' complying with the MSW Rules since 2003 with no financial input from the State or the Centre, just good management and a sense of commitment.
4. States seems to use the Rules as an excuse to milk funds from the Centre, by making that a precondition for action and inflating waste processing costs 2-3 fold. The Supreme Court Committee recommended 1/3 contribution each from the city, State and Centre. Before seeking 70-80% Centre's contribution, every State should first ensure that each city first spends its own share to immediately make its wastes non- polluting by simple sanitizing/stabilizing, which is always the first step in composting viz. inoculate the waste with cow dung solution or bioculture and placing it in windrows (long heaps) which are turned at least once or twice over a period of 45 to 60 days.
5. Unless each State creates a focused 'solid waste management cell' and rewards its cities for good performance, both of which Maharashtra has done, compliance with the MSW Rules seems to be an illusion. 6. The admitted position is that the MSW Rules have not been complied with even after four years. None of the functionaries have bothered or discharged their duties to ensure compliance. Even existing dumps have not been improved. Thus, deeper thought and urgent and immediate Action.
6. Needless to say that improvement in environment is not only inalienable duty of the State, but is also necessary for sustainable development which is 39 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.
essential for the health and well-being of citizens as well as for intergenerational equity. These principles require that all human activities should be conducted in such a way that the rights of future generations to access clean air and potable water are not taken away. At the cost of repetition, it may be mentioned that water is being polluted because of discharge of untreated sewage and effluents. Air pollution is result of failure to manage solid waste and to prevent other causes leading to air pollution. There are also other issues like deterioration in groundwater level, damage to forests and wild life, unscientific and uncontrolled sand mining etc. Unsatisfactory implementation of law is clear from the fact that inspite of severe damage, there is no report of any convictions being recorded against the polluters, nor adequate compensation has been recovered for damage caused to the environment. Steps for community involvement are not adequate. There is reluctance even to declare some major cities as fully compliant with the environment norms. The authorities have not been able to evolve simplified and standard procedure for preparing project reports and giving of contracts. There is no satisfactory plan for reuse of the treated water or use of treated sewage or waste and for segregation and collection of solid waste, for managing the legacy waste or other wastes, etc."
22. In the above noted case, the Chief Secretaries of the state were directed to personally monitor the progress at least once in a month with all the District Magistrates and all the district magistrate were directed to ensure and monitor the status of the compliances of environmental norms at least once in two weeks but the same has not been complied with in the present case.
23. Apart from the carrying out studies by the state CPCB/state PCB may explore preparation of annual environmental plan for the country and the 40 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. state, giving a status of compliances of environmental norms and gaps if any, in the process undertaking of assessment of damage to the environment in monetary terms and it may be considered so that by applying polluter pay principle the cost of damage is recovered from identified polluters. This concept is necessary for effective enforcement of environment rule of law. State PCB may be at liberty to involve such other agencies, as it may consider necessary. The carrying capacity studies undertaken in pursuance of the order of this Tribunal in Spoke Vs. Kasauli Galaxi Resort, passed in OA no. 218/2017 order dated 5-10-2018, may also be duly considered in the process. Such studies may be necessary for giving effect to the concept of sustainable development and giving effect to policy making and planning for sustainable development.
24. The Water (Prevention and Control of Pollution) Act, 1974 read with Air (Prevention and Control of Pollution) Act, 1981 requires prior consent to establish and consent to operate and there are provisions for punitive action in case of violation. The rules quoted in section 25 and 26 in Water (Prevention and Control of Pollution) Act, 1974 and 21 in the Air (Prevention and Control of Pollution) Act, 1981 have been referred by the expert committee. The polluted pay principle and the public trust dropped in does not provide any retrospective consent and regularizing back period and it violates the principle of environment rules. The doctrine is polluted to pay, not to pollute and pay. The order passed by the State Pollution Control Board under question is in complete violation of Sterlite Industry Case, Alambic Pharmaceutical, LG Polymer, common cause cases referred above.
25. It is further in violation of guideline issued by the CPCB, methodology for imposing environmental compensation and in violation of Writ Petition (Civil) No. 375/2012, Paryavaran Suraksha Samiti case referred above.
The operation of any unit without statutory permission and regularizing 41 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. the past period is in violation of the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 and regularizing defaulter units which are operating without a valid consent CTO by imposing back period fees, permits these units to operate without any accountability for any environmental norms and it is called unauthorized and illegal operation. The principle is that no retrospective regularization shall be considered as these actions violate environmental laws and should not be regularized without accountability.
26. In view of the above discussion, we are of the view that the order passed by the State Pollution Control Board under challenge is beyond the jurisdiction of the State PCB and against the provision of law and settled principle laid down by Hon'ble Supreme Court with regard to principle of polluters to pay and public trust doctrine. The order passed by the State Pollution Control Board, Rajasthan, dated 02.01.2024 is not in consonance with the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 and in contravention of the order of Hon'ble Supreme Court of India in Vellore Citizen Welfare Forum case and against the CPC guidelines. Accordingly, appeal deserves to be allowed, and accordingly allowed and the order dated 02.01.2024 passed by the Respondent No. 3, deserves to be modified and corrected according to the settled provisions of law and guidelines issued by the CPCB.
27. Accordingly, the expert reports submitted by the CPCB be forwarded to the State PCB, Rajasthan, with the direction to modify and correct and amend the notification according to the guidelines quoted above. The same may be done as early as possible within a period of 60 days and compliance reports be submitted to the Registrar, National Green Tribunal Central Zone Bench, Bhopal. We further direct that the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of 42 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors. Pollution) Act, 1974, in light of the CPCB guidelines and the pronouncement of the Hon'ble Supreme Court quoted above must be strictly complied with by the State Authorities and State Pollution Control Board. The Appeal No. 02/2024 alongwith I.A. No. 13/2024 stand disposed of accordingly.
28. Since, this litigation is for the interest of the environmental rules the appellant is entitled for the cost of the litigation and thus the appellant is entitled for the payment of cost of Rs. 5,000/- (Rupees Five Thousand) from the State Pollution Control Board, Rajasthan, which shall be paid within 60 days to the appellant Sheo Kumar Singh, JM Dr. Afroz Ahmad, EM 15th January, 2025 Appeal No. 02/2024(CZ) PN 43 Appeal No.02/2024 (CZ) Tahir Hussain Vs. State of Rajasthan & Ors.