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2025 Supreme(Online)(NGT) 98
NATIONAL GREEN TRIBUNAL BHOPAL (CENTRAL ZONE BENCH)
HON’BLE MR. JUSTICE SHEO KUMAR SINGH, HON’BLE DR. AFROZ AHMAD, JJ
TAHIR HUSSAIN – Appellant
Versus
STATE OF RAJASTHAN – Respondent
Appeal No. 2/2024 / BHOPAL
Mr. Prakash Pandey, Adv., Mr. Prashant Sthapak, Adv., Ms. Vanshika Dubey, Adv. (for Mr. Vaibhav Thakuria, Adv.), Mr. Shoeb Hasan Khan, Adv.
Retrospective regularization of environmental consent violates the Polluter Pays Principle and Public Trust Doctrine, necessitating accountability for environmental harm.
Headnote:(A) Environment (Protection) Act, 1986 - Water (Prevention and Control of Pollution) Act, 1974 - Air (Prevention and Control of Pollution) Act, 1981 - Notification dated 02.01.2024 by State Pollution Control Board exempting Environmental Compensation for Back Period - Challenged for violating statutory provisions and previous orders of the Tribunal and Supreme Court - The court emphasized that retrospective regularization of consent violates the Polluter Pays Principle and Public Trust Doctrine. (Paras 2, 12, 26)
(B) Polluter Pays Principle - The principle mandates that those causing environmental damage must bear the costs of managing it, including fines and restoration costs. (Paras 3, 20)
(C) Public Trust Doctrine - The government has a duty to protect natural resources for public use and cannot allow private exploitation that harms the environment. (Paras 3, 20)
Facts of the case:
The appellant challenged the State PCB's notification exempting Environmental Compensation for industries operating without consent, arguing it contravenes established environmental laws and principles.
Findings of Court:
The court found the notification to be in violation of the established environmental laws and principles, emphasizing the need for accountability in environmental governance.
Issues: The main issues included whether the notification violated environmental laws and principles, and the legality of retrospective regularization of consent.
Ratio Decidendi: The court ruled that the notification undermines the Polluter Pays Principle and Public Trust Doctrine, asserting that retrospective regularization of consent is impermissible under environmental law.
Result: The appeal was allowed, and the notification was ordered to be modified in accordance with legal provisions.
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 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 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 tre
