National Green Tribunal
Saint Polymers Pvt Ltd vs Commission For Air Quality Management ... on 3 April, 2023
Item No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Appeal No. 04/2023(CZ)
(I.A. No. 14/2023)
Saint Polymer Pvt. Ltd. Appellant(s)
Versus
Commissioner For Air Quality Management Respondent(s)
Date of Completion of Hearing and Reserving of Order : 21.03.2023
Date of Uploading of Order on the Website : 03.04.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Appellant(s): Mr. Tarun Gupta, Adv.
For Respondent(s) : Mr. Abhishek Atrey, Adv.
Mr. Vaibhav Kandpal, Adv.
ORDER
1. Challenge in this Appeal is the order dated 10.01.2023 passed by the Commission for Air Quality Management in National Capital Region and adjoining area whereby and whereunder the site of appellant unit was inspected by the authorities and it was found that the unit was in operation without obtaining environmental clearance and passed an order dated 10.01.2023 under Section 12(2)(11) of the Commission for Air Quality Management in National Capital Region (NCR) and adjoining area 2021 for closure of the unit M/s Saint Polymer Pvt. Ltd., District Alwar, Rajasthan as follows :-
WHEREAS, the Commission for Air Quality
Management in National Capitol Region and
Adjoining Areas Act, 2021 empowers the Commission to take all such measures and issue directions as it deems necessary or expedient for the purpose of 1 protecting and improving the quality of the air in the National Capital Region and Adjoining Areas; WHEREAS, the Commission, from time to time, has issued directions in respect of measures to abate air pollution in the Notional Capital Region including directions for strict compliance of air pollution control laws, rules and regulations in force, WHEREAS, there is a need for effective control of air pollution in wake of the deteriorating air quality scenario in NCR and compelling urgency to prevent further deterioration;
WHEREAS, M/s Saint Polymer Pvt. Ltd., H - 566, RIICO Industrial Area, Chopanki, Tehsil - Tijara, District -
Alwar, Rajasthan - 301019, was inspected on 21.12.2022 by a Flying Squad constituted by the Commission, to verify the compliance of Directions / Orders issued by the Commission from time to time and relevant rules / regulations.
WHEREAS, it was reported after the inspection that the unit is a melamine powder manufacturing unit. Further, Unit WOS found operational without obtaining Environment Clearance (EC), which is mandatory for melamine manufacturing units and CTE & CTO from RSPCB, which is the foremost statutory pre-requisite for any industrial operation;
WHEREAS, the Enforcement Task Force constituted by me Commission vide Order dated 02.12.2021 , based on the report submitted by the flying squad, has examined the matter in its meeting held on 03.01.2023.
WHEREAS, Industrial pollution is a major contributing sector towards deterioration of air Quality in the NCR and the focus in this case are apparent and explicit, it is left that issuing show-cause notice will be o mere empty formality and is likely to defeat the very purpose of the action being taken to control air pollution in the region; WHEREAS, Air Quality in the NCR is in severe category and immediate prompt preventive action (s) is essential in such case (s) to prevent further deterioration of air 2 quality in the larger public interest and therefore the Enforcement Task Forme decided to order closure of the unit, till further orders and take legal action; NOW, THEREFORE, in view of the above and in exercise of the powers of the Commission by the Enforcement Task Force, under Section 12(2) (xi) of the Art, read with exploration, the following directions are issued for strict compliance :
i. M/s Saint Polymer Pvt. Ltd., shall close down all its industrial operations / activities in this unit immediately on receipt of this Direction; ii. M/s Saint Polymer Pvt. Ltd., SDOII thereafter report the closure of the unit to the Commission and Rajasthan State Pollution Control Board (RSPCB) ;
iii. M/s Saint Polymer Pvt. Ltd., under no circumstances, shall resume operations without prior permission and order of resumption from the Commission.
iv. For consideration of resumption of operations, the industrial unit after taking due corrective and preventive measures, may apply to the Commission. The indicative procedure and g guidelines for processing of the cases for resumption is available at the Commission‟s website www.cagm.nic.in v. In exercise of the powers of the Commission under Section 14 of One Act, Member Secretary, RSPCB or an Officer nominated by him is authorizes to and shall initiate action for prosecution of the unit under section 4 of the Commission for Air Quality Management in National Capitol Region and Adjoining Areas Act, 2021 against the said unit, be sides levying appropriate and deterrent penal measures /environment compensation.
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In case of failure in compliance of the above directions, the Commission will be constrained to initiate appropriate action, in accordance with provisions under the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 and other relevant laws."
2. The contention of the appellant is that vide impugned order Commission, without giving any prior show-cause notice or opportunity of hearing to the appellant, abruptly ordered it to close down immediately all its industrial operations/activities. Thus the impugned order has been passed in gross violation of principles of natural justice and fair play, in as much as no notice, much less prior opportunity of hearing has been granted to the Appellant before passing adverse directions resulting in closure of its operations.
3. The appellant is a Melamine/phenol/urea/urea formaldehyde resin and powder manufacturing unit, situated in RIICO Industrial area, Chopanki, Tehsil Tijara, District Alwar, Rajasthan.
4. The matter was taken up by this Tribunal on 06.02.2023 and notices were issued to the respondents for submission of reply.
5. Respondents have filed the reply with relevant documents. We have heard the learned counsel of parties and perused the record.
6. Learned Counsel for the appellant submitted that unit was in operation with the CTO issued by the State PCB, which was renewed w.e.f. 31.08.2020 to 31.07.2025 and on the basis of Consent to Establish granted by the PCB, the appellant set up the unit and incurred expenditure on purchasing plant and machinery.
7. Learned Counsel for the respondents have argued that the conditions of CTO dated 10.08.2022 includes the requirement of environmental clearance in 4 accordance with the provisions of EIA Notification dated 14.09.2006, relevant conditions are reproduced as follows :-
1. "That this Consent is subject to any order or direction from Hon'ble Supreme Court/High Court/National Green Tribunal or any other court of the competent jurisdiction.
2. That this Consent to Operate shall not be valid for operating process, plant & machinery for manufacturing products/carrying out operations covered under the provisions of EIA Notification dated 14/09/2006, without obtaining prior Environment Clearance under the provisions of the said notification and consequential Consent to Establish/Operate from the State Board.
3. That the grant of this Consent to Operate is issued from the environmental angle only, and does not absolve the project proponent from the other statutory obligations prescribed under any other law or any other instrument in force. The sole and complete responsibility to comply with the conditions laid down in all other laws for the time-being in force, rests with the industry/ unit/ project proponent."
8. Relying on category 5(f), the contention of the appellant is that unit does not required Environmental Clearance while the argument advanced by the learned counsel of the respondent that the unit requires environmental clearance. The matter was taken up by this Tribunal in Original Application No. 298/2020(PB) and vide order dated 03.06.2021, this Tribunal observed that :-
1. "Prayer in this application is against operation of industrial units of the private respondents in the States of Haryana, Rajasthan, UP and Punjab manufacturing formaldehyde and its different resins (including melamine formaldehyde, urea formaldehyde and phenol formaldehyde without requisite EC.5
2. We have dealt with matter by separate orders today in O.A. No. 840/2019, Ayush Garg v. UOI & Ors. and O.A. No. 287/2020, Dastak N.G.O. v. Synochem Organics Pvt. Ltd. & Ors. in relation to some of such units operating in Haryana after hearing the State and the industrial units in question. It has been held that in absence of Environmental Clearance under Entry 5(f) of the EIA Notification dated 14.09.2006, such Units cannot be allowed to operate. Relevant extract from order in O.A. No. 287/2020, Dastak N.G.O. v. Synochem Organics Pvt. Ltd. & Ors. is reproduced below:
"7. It is clear from the stand of the State itself that prior EC is required under EIA Notification dated 14.09.2006 Entry 5(f) of the Schedule. Once it is so there is no justification to permit function of such units in violation of mandate of law. In Alembic Chemicals v Rohit Prajapati & Ors., 2020 SCC Online 347, the Hon‟ble Supreme Court has made it clear that prior EC requirement cannot be dispensed with. While it is true that having regard to the fact situation therein particularly grant of EC later, the units were not closed and instead were required to pay compensation for the period the units functioned without prior EC, it does not mean that in absence of prior EC the units can be allowed to function by paying compensation. We thus hold that without prior EC the units cannot be allowed to operate. The State has no power to exempt the requirement of prior EC or to allow the units to function without EC on payment of compensation. Same view has been taken in O.A. No. 840/2019, Ayush Garg v. UOI & Ors. which has been dealt with by a separate order today.
8. As regards the stand of the private respondents that the State has delegated power under section 3(3) of the Environment (Protection) Act, which implies that the State could exempt EIA requirement, 6 neither any such delegation is shown nor the State claims to have such power or to have exercised such power. A statement has been made on behalf of the private respondents as well as State that the units now stand closed. Learned Counsel for the private respondents also submitted that their units have been functioning in a bonafide manner without causing pollution. Though they did not have EC only for want of knowledge of such requirement, they had requisite consents to establish and operate which have been renewed from time to time. They wish to comply with law and have also applied for EC.
9. We are of the view that since prior EC is statutory mandate, the same must be complied. We have no doubt that the stand of the private respondents will be duly considered by the concerned regulatory authorities, including the MoEF&CC on merits and in accordance with law but till compliance of statutory mandate, the units cannot be allowed to function. For past violations, the concerned authorities are free to take appropriate action in accordance with polluter pays principle, following due process."
3. The above principle has to be followed in all other States where such units are functioning without prior EC. In the present application grievance is also against similar units functioning in the States of Rajasthan, UP and Punjab or any other State, in addition to Haryana for which above order has been passed. This needs to be checked by concerned statutory authorities and remedial action taken, following due process of law."
9. Formaldehyde is a hazardous chemical, which was being used releasing Volatile Organic Compounds (VOCs) in violation of Hazardous Waste (Management and Transboundary Movement) Rules, 2016. The 7 functioning of the unit and requirement of environmental clearance was considered in Original Application No. 840/2019 (PB) and the Principle Bench of this Tribunal vide order dated 03.06.2021 directed that the State Pollution Control Board must ensure that the unit does not restart functioning without requisite statutory clearances.
10. The matter was raised before the Hon'ble Supreme Court of India in Civil Appeal No. 4795/2021 Pahwa Plastics Pvt. Ltd. & Anr. Vs. Dastak NGO & Ors. 2022 SCC Online SC 362. The Hon'ble Supreme Court observed as follows :-
"6. The Air Pollution Act provides for the constitution of a Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCB) to deal with the problem of air pollution. Section 16 of the Air Pollution Act enables the Central Pollution Control Board to take steps to improve the quality of air and to prevent, control or abate air pollution in the country. Section 17 of the Air Pollution Act enables the State Pollution Control Boards to plan comprehensive programmes for the prevention, control or abatement of air pollution , inter alia, by laying down standards for emission of air pollutants.
7. Section 18 of the Air Pollution Act enables the Central Government to give directions by which the CPCB is to be bound. Similarly, every SPCB is to be bound by directions in writing as might be given by the CPCB or the State Government.
8. Where a notification is issued under the Air Pollution Act, placing an area within the control area of air pollution, permission is necessary to set up and operate any factory or plant thereat. No person operating any factory or plant in any air pollution control area is to discharge or cause or permit to be discharged the emission of any air pollutants, in excess of the standards laid down by the SPCB under Clause (g) of sub- Section (1) of Section 17.8
9. The Environment (Protection) Act, 1986, hereinafter referred to as "the EP Act" was also enacted pursuant to the decisions taken at the United Nations Conference on the Human Environment, held in Stockholm in June, 1972. As per the Statement of Objects and Reasons for enactment of the EP Act, the said Act has been prompted by concern over the environment, that has grown all over the world since the 60s.
10. Sub-section (1) of Section 3 of the EP Act empowers the Central Government to take all such measures as it might deem necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and reducing environmental pollution.
11. Sub-section (2) of Section 3 of the EP Act enables the Central Government to take, inter alia, the following measures:
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;9
v. restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;
vi. laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;
vii. laying down procedures and safeguards for the handling of hazardous substances;
viii. examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;
ix. carrying out and sponsoring investigations and research relating to problems of environmental pollution;
x. inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;
xi. establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;
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."10
30. In exercise of power under Section 3(1) and Section 3(2)(v) of the EP Act read with Rule 5(3)(d) of the EP Rules, the Central Government issued a notification being S.O. 804(E) dated 14th March 2017 which provides for grant of ex post facto EC for project proponents who had commenced, continued or completed a project without obtaining EC under the EP Act/ EP Rules or the Environmental Impact Notification issued thereunder. Paragraphs 3, 4 and 5 of the said notification, read as hereunder:
"(3) In cases of violation, action will be taken against the project proponent by the respective State or State Pollution Control Board under the provisions of section 19 of the Environment (Protection) Act, 1986 and further, no consent to operate or occupancy certificate will be issued till the project is granted the environmental clearance.
(4) The cases of violation will be appraised by respective sector Expert Appraisal Committees constituted under sub-section (3) of Section 3 of the Environment (Protection) Act, 1986 with a view to assess that the project has been constructed at a site which under prevailing laws is permissible and expansion has been done which can be run sustainably under compliance of environmental norms with adequate environmental safeguards; and in case, where the finding of the Expert Appraisal Committee is negative, closure of the project will be recommended along with other actions under the law.
(5) In case, where the findings of the Expert Appraisal Committee on point at sub-para(4) above are affirmative, the projects under this category will be prescribed the appropriate Terms of Reference for undertaking Environment Impact Assessment and preparation of Environment Management Plan. Further, the Expert Appraisal Committee will prescribe a specific Terms of Reference for the project on assessment of ecological damage, remediation plan and natural and community 11 resource augmentation plan and it shall be prepared as an independent chapter in the environment impact assessment report by the accredited consultants. The collection and analysis of data for assessment of ecological damage, preparation of remediation plan and natural and community resource augmentation plan shall be done by an environmental laboratory duly notified under Environment (Protection) Act, 1986, or a environmental laboratory accredited by National Accreditation Board for Testing and Calibration Laboratories, or a laboratory of a Council of Scientific and Industrial Research institution working in the field of environment."
31. The Notification of 2017 is a valid statutory notification issued by the Central Government in exercise of power under Sections 3(1) and 3(2)(v) of the EP Act read with Rule 5(3)(d) of the EP Rules in the same manner as the EIA Notification dated 27th January 1994 and the Notification dated 14th September 2006.
55. In Electrosteel Steels Limited v. Union of India (2021 SCC Online SC 1247), this Court held:-
"82. The question is whether an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down for the technical irregularity of shifting its site without prior environmental clearance, without opportunity to the establishment to regularize its operation by obtaining the requisite clearances and permissions, even though the establishment may not otherwise be violating pollution laws, or the pollution, if any, can conveniently and effectively be checked. The answer has to be in the negative.
83. The Central Government is well within the scope of its powers under Section 3 of the 1986 Act to issue directions to control and/or prevent pollution including directions for prior Environmental Clearance before a 12 project is commenced. Such prior Environmental Clearance is necessarily granted upon examining the impact of the project on the environment. Ex- Post facto Environmental Clearance should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of Notifications under the 1986 Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of a running steel plant.
84. The 1986 Act does not prohibit ex post facto Environmental Clearance. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in over view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.
88. The Notification being SO 804(E) dated 14th March, 2017 was not an issue in Alembic Pharmaceuticals (supra). This Court was examining the propriety and/or legality of a 2002 circular which was inconsistent with the EIA Notification dated 27th January, 1994, which was statutory. Ex post facto 4 2021 SCC online SC 1247 environmental clearance should not however be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of ex post facto approval outweigh the consequences of regularization of operation of an industry by grant of ex post facto approval and the industry or establishment concerned otherwise conforms to the requisite pollution norms, ex post facto 13 approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. Ex post facto approval should not be withheld only as a penal measure. The deviant industry may be penalised by an imposition of heavy penalty on the principle of „polluter pays‟ and the cost of restoration of environment may be recovered from it."
11. The Hon'ble Supreme Court of India in Civil Appeal No. 4795/2021 titled Pahwa Plastics Pvt. Ltd. & Anr. Vs. Dastak NGO & Ors. inter alia, held as under:-
"62. There can be no doubt that the need to comply with the requirement to obtain EC is non-negotiable. A unit can be set up or allowed to expand subject to compliance of the requisite environmental norms. EC is granted on condition of the suitability of the site to set up the unit from the environmental angle, and also existence of necessary infrastructural facilities and equipment for compliance of environmental norms. To protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced. Under no circumstances can industries, which pollute, be allowed to operate unchecked and degrade the environment.
63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the 14 principle of „polluter pays‟ and the cost of restoration of environment may be recovered from it.
69. The Union of India had proceeded with the application for EC and even public hearing had been held. Counsel appearing on behalf of the Union of India contended that the Appellant had not submitted its final application for EC, after public hearing. It is not clear what more was required of the Appellants. Be that as it may, the Union of India shall, within three working days from the date of receipt of a copy of this judgment and order, inform the Appellants in writing of whether anything further is required to be done by the Appellants, and if so what is required to be done. The Appellants shall, within a week thereafter do the needful. The final decision on the application of the Appellants for EC shall be taken within three weeks thereafter."
12. Both the counsels relied on the judgment and appellant has submitted that the in view of the economic development and the livelihood the closure order should not be passed while on the other hand learned counsel for the respondent has submitted that on this ground the industry cannot be allowed to operate in violation of the environmental rules. The directions of the Hon'ble Supreme Court is clear in paragraph 69 (Supra) where it has been said that necessary actions for compliance of the directions and requirement of environmental clearance shall be fulfilled by the appellant within a week and thereafter the respondents shall take decision according to law within three weeks thereafter. The burden is on the appellant to take necessary actions for obtaining the environmental clearance and only on the ground by economic development the illegality cannot be permitted to continue in perpetuity.
13. It is further argued that the Rajasthan PCB vide notification/order dated 19.08.2019 made it clear that for the operation of the unit as of appellant, 15 the requirement of EC is essential and a period of 60 days was given to all the unit holders for obtaining the EC. The order is reproduced as follows :-
"The matter of applicability of provisions of Environment Impact Assessment, 2006 on Formaldehyde Manufacturing unit was examined and it was observed that the Formaldehyde Manufacturing is covered under synthetic organic chemical listed at Sr.No. 5(f) of the schedule 1 of EIA notification, 2006. Therefore to ensure that provisions of EIA,2006 are complied with, environmental clearance shall be sought in case of Formaldehyde Manufacturing units before considering the consent to Establish/Consent to operate applications.
All pending consent to Establish/Consent to operate applications of Formaldehyde Manufacturing units shall be considered only after submission of Environmental Clearance under EIA notification,2006. In case of the units which have been granted consent to Establish/Consent to operate on or after 14/9/2006, the unit shall be asked to submit Environmental Clearance under EIA notification,2006, as soon as possible, but shall apply at SEIAA/MOEF & C(whichever is applicable) and submit evidence of same to the State Board within a period of 60 days.
This bears approval of the competent authority."
14. Learned counsel for the appellant has further relied on order dated 12.02.2020 passed in Original Application No. 55/2019 (WZ) where industries were running without any EC and the authorities were directed to provide a reasonable time to come within the EC regime by granting a period of one year to operate for the purpose. This order is also not helpful to the appellant because the period of grace relates to the industries under question and if it is taken for granted then it expired on 12.02.2021 after grace period of one year.
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15. The above mentioned order was challenged in Civil Appeal No. 3116/2020 and Hon'ble Supreme Court of India vide order dated 10.08.2022 examined the position in view of the notification dated 20.07.2022. The contention of the learned counsel for the respondent is that the position has already been clarified by the Rajasthan Pollution Control Board vide order dated 19.08.2019 and there was no ambiguity with regard to the chemical which was produced by the appellant unit. Despite the available opportunity of sixty days the appellant did not apply for EC and continued to operate without EC.
16. Learned counsel for the appellant has argued that the opportunity of hearing was not provided to the appellant unit. The contention of the learned counsel for the respondent is that :-
1. "That the entire appeal of the appellant is based on the ground that no opportunity of hearing was given to him before passing order dated 10.1.2023 by the replying respondent, but he nowhere stated that environment clearance was not necessary for his unit or he was exempted by any statute or Rules or regulations for having prior environment clearance. On the one hand the appellant is relying on the draft notification of MoEF&CC, which has no force in the eyes of law and on the other hand he is saying that he applied for environment clearance but he has not filed any document along with this appeal that he applied for environment clearance or the status of his application for environment clearance.
2. The appellant himself admitted that he is operating the manufacturing unit of melamine / phenol / urea /urea formaldehyde resin and powder from last 7 years and last consent to operate was given to him by Rajasthan State Pollution Control Board by order dated10.08.2022 for the period from 31.8.2020 to 31.7.2025 (page 50-55). It is pertinent 17 to mention here that in this order itself it is specifically mentioned by the Rajasthan State Pollution Control Board in condition No. 9 that the consent to operate shall not be valid for operating process, plant and machinery for manufacturing products or carrying out operations covered under EIA notification dated 14.09.2006 without obtaining prior environment clearance. Condition No.35 further says that the consent to operate does not absolve the project proponent from other statutory obligations and the last para of order dated 10.5.2020 specifically says that non compliance of any of the conditions would tantamount to revocation of consent to operate and the project proponent shall be liable for legal action.
3. That in closure order dated 10.1.2023, the replying respondent directed the appellant to report the closure of the unit to the Commission and Rajasthan Pollution Control Board and also gave liberty to the appellant to approach the replying respondent for resumption of operations after taking due corrective and preventive measures, but the appellant neither reported to the Commission about closure of the unit nor approached the Commission for resumption of the unit, rather he approached this Tribunal without showing his bonafide that he has prior environment clearance or he complied with the mandatory conditions of the consent to operate.
4. That alongwith the appeal the appellant filed several notifications, orders, judgments of this Tribunal as well of Hon'ble Supreme Court, but in none of these judgments there is even a whisper that for manufacturing of formaldehyde prior environment clearance is not required or any manufacturing unit of formaldehyde is exempted from taking prior environment clearance.
5. The appellant himself annexed order ‹dated 19.8.2019 issued by the Rajasthan State Pollution Control Board at page 156-157, by which RSPCB directed that all pending consent to 18 establish or consent to operate applications of formaldehyde manufacturing units shall be considered only after submission of environment clearance under EIA notification 2006 and in case the units which have been granted consent to establish / operate on or after 14.09.2006 shall be asked to submit environment clearance as soon as possible, but shall apply at SEIAA/MoEF&CC (whichever is applicable) and submit evidence of the same to the State Board within a period of 60 days. It is pertinent to mention here that it is nowhere clarified by the appellant in the entire appeal that he has ever complied this order and submitted evidence of environment clearance or applying for environment clearance within 60 days of date of the order dated 19.08.2019 and nor did he explained as to under what circumstances next consent to operate dated 10.8.2022 was given to him by Rajasthan State Pollution Control Board without emphasizing compliance of its own order dated 19.08.2019. Needless to mention here that in the present appeal the appellant did not made Rajasthan State Pollution Control Board or MoEF&CC as party to the present appeal. Therefore, the appeal of the appellant is liable to be dismissed with exemplary cost.
6. The Commission for Air Quality Management was constituted under the provisions of the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 for better coordination, research, identification and resolution of problems surrounding the air quality index and for matters connected therewith or incidental thereto.
7. Under the Act, the Commission for Air Quality Management has been vested with the power to take all such measures, issue directions and entertain complaints, as it deems necessary or expedient, for the purpose of protecting and improving the quality of the air in the National Capital Region and Adjoining Areas and shall also have the duty to take all such measures as may become necessary for protecting and 19 improving the quality of air in the National Capital Region and Adjoining Areas.
8. Various studies conducted in the past regarding pollution in NCR have clearly established that Industries are one of the major sources of pollution in Delhi NCR. This issue becomes more serious in the winter months because of low temperature, unfavourable wind velocity, poor ventilation index and low mixing heights. Many steps have been taken to prevent, control and abate air pollution including from industries in the NCR.
9. The Commission for Air Quality Management has also repeatedly taken up the matter relating to air pollution in NCR with the Government of NCT of Delhi (GNCTD) and State Governments of Haryana, Uttar Pradesh, Rajasthan, Punjab and various organisations of the Central and State Governments / GNCTD and had issued Directions, Advisories as well as conveyed decisions for implementation of measures for abating air pollution in NCR.
10. The Commission vide its Order dated 02.12.2021 constituted an "Enforcement Task Force" (hereinafter referred to as „ETF‟) to monitor and supervise the implementation of the statutory Directions. The ETF was entrusted with the task to inspect and continuously supervise and monitor the compliance of the directions issued lay the Commission through "inspection teams / flying squads" constituted by the Commission vide order dated 02.12.2021."
17. The matter of poor air quality in the NCR region was considered by the Hon'ble Supreme Court of India in Writ Petition No.1135/2020 (Aditya Dubey (Minor) & Anr. Vs. Union of India & Ors. and vide order dated 03.12.2021 Hon'ble Supreme Court of India taking seriousness of the matter strongly directed the authorities to take necessary actions and remedial measures to maintain the air quality within the permissible limit, 20 so that it may not adversely affect the life and health of the person residing within the NCR region. The Hon'ble Court observed the working of the enforcement task and observed as follows :-
"We find that an `Enforcement Task Force‟ of Five Members is stated to have been constituted by the said Commission in exercise of its statutory powers. The Task Force will exercise powers of taking punitive and preventive measures against the noncompliant/defaulting persons/entities.
As per the said Affidavit, Flying Squads would also be increased to 40 in the next 24 hours, which are stated to have started functioning from 02.12.2021 itself and have conducted surprise checks at 25 sites so far.
It has further been averred in the said affidavit that in addition to Direction No.44 dated 16.11.2021 related to industrial pollution, the Commission has further directed vide Direction No.46 dated 02.12.2021 that industrial operations and processes in NCR, where gas is not available and the industrial unit is not running on PNG or cleaner fuels, shall be allowed to operate only upto 8 hours a day during weekdays and shall remain closed during Saturdays and Sundays."
18. Learned counsel for the appellant has submitted the opportunity of hearing was not provided to the appellant while on the other hand the learned counsel for the respondent had submitted that the Hon'ble Supreme Court of India considered in the matter on a weekly basis or day to day basis and the matter which was fixed on 03.12.2021 was again listed for hearing for 10.12.2021 with action taken by the respondents Central Government, State Government and the Commission and again vide order dated 10.12.2021 (Writ Petition (C) No. 1135/2020) directed the Commission as follows :-
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"We direct the Commission to examine requests of various industries and organisations about relaxation of conditions imposed by virtue of our previous orders or otherwise as per the Commission‟s circulars. We direct the concerned interveners to furnish a copy of their applications to the office of the learned Solicitor General, who is requested to forward the same to the Commission. We expect that the Commission will look into this and take appropriate action in a week‟s time."
19. The Director of Commission for Air Quality Management in NCR and adjoining area notified a public notice on 09.12.2022 as follows :-
"Public Notice In order to strengthen the public grievances redressal mechanism in the Commission the following officers of the Commission will be available on every Monday, wednesday and Friday (except holidays) between 12.00PM to 1.OOPM to hear public grievances:
i. Director (Admn.), CAQM
ii. Director (Technical) CAeM
iii. Member Secretary, CAeM
iv. Member (Technical) CAQM
v. Chairperson, CAQM
2. As far as possible, for meeting Chairperson, CAQM, prior appointment may be taken.
3. Public may also meet the above officers at other times in the office with prior appointment."
1. That the Commission has apprised the Hon‟ble Supreme Court regarding the inspection and closures from time to time by way of affidavits and orders were accordingly passed by the Hon‟ble Supreme Court. During the period from December, 2021 to 27.02.2023, a total of 12,457 inspections were conducted by the flying squads and 766 closure directions were issued.
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2. Flying Squads are conducting regular incognito inspections towards effective monitoring and implementation of air pollution control measures. As part of the series of inspections, industrial unit of M/s Saint Polymer Pvt. Ltd., located at H 1, RIICO Industrial area, Chopanki; T e h s i l Tijara, District Alwar, Rajasthan 301019, was also visited and inspected on 21.12.2022, to verify the compliance of Directions / Orders issued by the Commission from time to time and relevant rules/regulations.
3. It was reported after the inspection by the inspection team / flying squad that the said unit of the Appellant was found operational without obtaining environmental clearance (EC), which is mandatory for melamine manufacturing units under EIA Notification, 2006 and also for Consent to Operate (CTO) from RSPCB, which is the foremost statutory pre- requisite for any industrial operation.
4. The Enforcement Task Force constituted by the Commission vide Order dated 02.12.2021, based on the report submitted by the flying squad, examined the matter in detail and decided to order closure of the unit till further orders and to take legal action against the said unit in view of the gross violations. The Commission, therefore, in exercise of the powers under Section 12(2)(xi) of the Act, read with explanation, issued direction dated 10.01.2023 to the unit of appellant for closure of its operation with immediate effect.
5. The appellant was also directed close down all its industrial operations / activities in the unit immediately on receipt of the closure direction dated 10.01.2023 and to report the closure of the unit to the answering respondent and Rajasthan State Pollution Control Board, however, till date the appellant has not informed the answering respondent regarding compliance of the directions issued by the answering respondent which shows the intent of appellant of flouting and disregarding the statutory 23 directions issued by an authority constituted under the law of the land.
6. The Commission had issued a public notice on 09.12.2022 to strengthen the public grievances redressal mechanism which provides the opportunity of personal hearing to such units as well as the public and the same is also uploaded on the website of the Commission, but the appellant had also not approached the Commission till date.
7. The issues raised in Pahwa Plastic (dealt by Hon‟ble Supreme Court in Civil Appeal No. 4795 of 2021) matter, it is noted by the Hon‟ble Supreme Court that HSPCB took a policy decision to allow units which did not have prior EC to operate for six months, on condition that they would apply for EC within sixty days and the unit in question had not applied for the EC. Therefore, the appellant‟s attempt to rely on the judgment is misconceived.
8. It is a well established principle of law that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of it. Appellant‟s submission that there was a confusion regarding the applicability of EC is ex facie invalid and not acceptable. Appellant must have known all applicable laws and requisites before inception of its unit.
20. It is further argued that :-
i. "Where interest of the public would be jeopardized by the delay in a hearing, or in exceptional cases of emergency where prompt action, preventive or remedial, is needed, the requirement of notice and hearing may be obviated. It can be said that if the right to be heard will paralyze the process, then it can be excluded.
ii. At the time when closure direction was issued against the unit, air quality was in severe category. On 10.01.2023 when closure direction was issued against the appellant‟s unit, air quality of Delhi was falling under severe category with an AQI of 407 and actions under Stage-III (severe air quality) of Graded Response Action Plan (GRAP) were invoked in the entire National Capital 24 Region.
iii. In wake of deteriorating air quality of the National Capital Region, besides 24 points restrictive actions undertaken under Stage-I (poor air quality) and 12 points restrictive actions under Stage-II (very poor air quality) of GRAP, 9 points, strict restrictive actions under Stage-IIII of GRAP were invoked which also included ban on construction activities, complete ban on operations of stone crushers, ban on mining and associated activities in NCR, strict ban on operations of brick kilns, hot mix plants which are not operating on fuels as in the standard list of approved fuels for NCR.
iv. When air quality in Delhi and NCR is hovering around very poor, severe and severed- category, in such scenario of extreme urgency where prompt preventive and remedial action is needed and interest of the public would be jeopardizes if immediate action is not taken. In the present case hearing opportunity would have defeated or abrogates the very purpose/object of the action being taken, when the facts that the appellant‟s unit was operating without environmental clearance is stated to be admitted or undisputed and principle of natural justice would have only been an empty formality.
v. When emergent and extreme measures are taken to prevent further deterioration of air quality and for its improvement, allowing any industry, activity to run / operate beyond the environmental regulatory regime would be against public interest and the health of public in large and violators of the law which may cause threat to the health of people cannot operate their industrial operation over and above the fundamental rights of life and good health of the common citizens.
vi. The Supreme Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248 observed that right of prior notice and opportunity to be heard may be excluded by implication "Where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature.25
vii. Hon‟ble Supreme Court in the matter of Viveka Nand Sethi v. Chairman, J&K Bank Ltd., (2005) 5 SCC 337 observed that the principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case.
viii. Opportunity to show cause is not necessary where facts are undisputed and the affected person could not put fourth any valid defence. The principles of natural justice are furthermore, not required to be complied with, if it will lead to a mere empty formality. A hearing can be prevented if it defeats or abrogates the very purpose/object of the action being taken. Where facts can be stated to be admitted or undisputable, and only one conclusion is possible principle of natural justice would be an empty formality.
ix. The Closure Direction dated 10.01.2023 cannot be said an arbitrary order and violative of principal of natural justice, as impugned closure direction record the reasons for not issuing show cause notice and the order is a speaking order which mentions the reason(s) for arriving at a particular decision. Main objective of Principles of Natural Justice is to harmoniously construe individual‟s natural rights of being heard and fair procedure as well as the public interest, however, larger public interest is to be allowed to override the individual‟s interest where the justice demands.
x. The Hon‟ble Supreme Court, in a similar matter with respect to the ex post facto Environmental Clearance, in the matter of Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati, (2020) 17 SCC 157, inter alia held as under:
"....The concept of an ex-post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to EIA Notification dated 27.01.1994. It is, as the judgment in Common Cause [Common Cause vs. Union of India, (2017) 9 SCC 499] holds, detrimental to the environment and could lead 26 to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development."
xi. The appellant has not only failed to comply with the order of the NGT and the statutory obligation of obtaining a clearance under the Environment (Protection) Act, 1986 despite the conditions imposed by the RSPCB vide its CTO dated 10.08.2022 which inter alia reads as under:
"9. ... That this Consent to Operate shall not be valid for operating process, plant & machinery for manufacturing products/carrying out operations covered under the provisions of EIA Notification dated 14/09/2006, without obtaining prior Environment Clearance under the provisions of the said notification and consequential Consent to Establish/Operate from the State Board.27
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35. That the grant of this Consent to Operate is issued from the environmental angle only, and does not absolve the project proponent from the other Statutory Obligations prescribed under any other law or any other instrument in force. The sole and complete responsibility to comply with the conditions laid down in all other laws for the time-being in force, rests with the industry/unit/ project proponent..."
xii. The Consent to Operate granted to the appellant by the RSPCB is also subjected to the general and specific conditions imposed while granting CTO. It has also been categorically mentioned in the CTO granted to the appellant that non- compliance of any of the conditions of CTO would tantamount to revocation of Consent to Operate, which means that the operation of its unit by the appellant without obtaining EC is express and willful violation of the conditions of the CTO which tantamount to the revocation of the CTO. xiii. No provision under the extant environment laws permits the unit of appellant to run with in absence of an environmental clearance. It is evident that Environmental Clearance (EC) is required to be obtained under the purview of environmental laws and the relevant laws mandate for a prior EC which warrants a careful application of mind, besides a study into the likely consequences of the activity on the environment. Hence, permitting the industry to operate till it obtains the EC would be in contravention to the settled law position and if the EC is to be ultimately refused, irreparable harm would have been caused to the environment.
xiv. Not obtaining mandatory statutory clearance or permission under environmental laws including the Environment (Protection) Act, 1986 can lead to serious irreparable damage 28 to the environment including air quality in the region and it is reiterated that the Commission is vested with powers to take all such measures, as it deems necessary or expedient, for the purposes of protecting and improving the quality of the air in the National Capital Region and adjoining areas and shall also have the duty to take all such measures as may become necessary for protecting and improving the quality of air in the National Capital Region and adjoining areas."
21. The issue with regard to the requirement of Environment Clearance, operation of unit without any valid EC and imposition of Environmental Compensation was considered in Rathi Special Steels Ltd. Vs. Commission for Air Quality Management and Ors. and 2020 SCC Online NGT page 176 where it was observed as follows :-
"257. Once a valid closure order was passed, permission to re-open unit could have been granted only when all other things are in accordance with law. When it came to the notice of AQM Commission that a mandatory condition of requirement of EC is wanting and appellant unit is working illegally in violation of provisions of EIA 2006, obviously, it could not have issued any direction permitting appellant's unit to function without EC. Direction of resumption of work could have been issued only when it would have been legally permissible under law for the appellant to resume work."
22. It was further observed that apparently the appellant unit was violating environmental laws and hence AQM Commission has rightly issued closure order.
23. Learned counsel for the appellant has raised the issue that after the notice of AQM Commission the unit is lying closed and balancing interest of the industry and requirement of the EC is required, on the principle of sustainable development and the precautionary principle. The unit should 29 be allowed to operate on certain terms and conditions. Learned counsel for the appellant has further argued that the large number of people are employed in the unit and further continuance of the closure of unit would ultimately cause a national loss, damage the unit irreparably and that will not be in the interest of anyone. It is further argued that the appellant unit has applied for the EC and the matter is under consideration before the Competent Authority.
24. Respondent argued that on the issue of ex post facto Environment Clearance in the matter of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 SCC 157, inter alia held as under:
"...The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema the EIA Notification dated 27-1-1994. It is, as the judgment in Common Cause [Common Cause v. Union of India, (2017) 9 SCC 499] holds, detrimental to the environment and could lead to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision- making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing far an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the 30 environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development."
25. The Consent to Operate granted to the appellant by the RSPCB is also subjected to the general and specific conditions imposed while granting CTO. It has also been categorically mentioned in the CTO granted to the appellant that non-compliance of any of the conditions of CTO would tantamount to revocation of Consent to Operate, which means that the operation of its unit by the appellant without obtaining EC is express and willful violation of the conditions of the CTO which tantamount to the revocation of the CTO.
26. The appellant has also not intimated this Tribunal regarding the status of operation of its unit during the period from 01.05.2019 to 30.08.2020 for which no CTO has been annexed by the appellant in present appeal which also raise concerns regarding to the compliance of environmental norms during that period.
27. No provision under the extant environment laws permits the unit of appellant to run in absence of an environmental clearance. It is evident that Environmental Clearance (EC) is required to be obtained under the purview of environmental laws and the relevant laws mandate for a prior EC which warrants a careful application of mind, besides a study into the likely consequences of the activity on the environment. Hence, permitting the industry to operate till it obtains the EC would be in contravention to the settled legal position and if the EC is to be ultimately refused, irreparable harm would have been caused to the environment.
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28. It is pertinent to mention here that the submission made by appellant that unit was not causing any pollution, is contrary to facts and not borne by records and is therefore ab initio invalid in view of the emission standards / limits provided in CTO for operation of Baby Boiler (biomass fired) and in this regard clearly hold that in absence of an environmental clearance the industry cannot be allowed to function in accordance with law till compliance of statutory mandate and hence the unit has not only failed to comply with the orders of the NGT but also grossly violated the directions of the Commission and thus attracting action in accordance with "polluter pays principle", following due process of law.
29. Not obtaining mandatory statutory clearance or permission under environmental laws including the Environment (Protection) Act, 1986 can lead to serious irreparable damage to the environment including air quality in the region and it is reiterated that the Commission is vested with powers to take all such measures, as it deems necessary or expedient, for the purpose of protecting and improving the quality of the air in the National Capital Region and adjoining areas and shall also have the duty to take all such measures as may become necessary for protecting and improving the quality of air in the National Capital Region and adjoining areas.
30. In view of aforesaid facts and circumstances it is clearly established that the appellant has grossly violated the directions of Hon'ble Supreme Court, NGT, not complied with the statutory directions and was operating without obtaining Environmental Clearance and such industry cannot be allowed to operate / function outside the environmental regulatory regime. In view of the aforesaid facts and 32 circumstances the appeal of the appellant does not sustain in the eyes of law and is liable to be dismissed, accordingly, Appeal No. 04/2023 alongwith I.A. No. 14/2023 are dismissed.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 03rd April, 2023 Appeal No. 04/2023(CZ) PN 33