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2024 Supreme(Online)(NGT) 767
NATIONAL GREEN TRIBUNAL BHOPAL (CENTRAL ZONE BENCH)
Sheo Kumar Singh, Judicial Member, Afroz Ahmad, Expert Member
Tahir Hussain – Appellant
Versus
State of Rajasthan – Respondent
Appeal No.02/2024 (CZ)|I.A.No.13/2024
For Appellant(s): Mr. Prakash Pandey, Adv.
For Respondent(s): Mr. Prashant Sthapak, Adv., Ms. Vanshika Dubey, Adv., Mr. Shoeb Hasan Khan, Adv.
State Pollution Control Boards cannot regularize operations without prior consents via back period fees exempting environmental compensation; violates statutes, polluter pays principle; both penalty and case-specific compensation mandatory.
Headnote:(A) Water (Prevention and Control of Pollution) Act, 1974 - Sections 25, 26, 44, 45(A), 45(E)(1); Air (Prevention and Control of Pollution) Act, 1981 - Sections 21, 39, 39
(D)(1); Environment (Protection) Act, 1986 - Sections 3, 7, 14A, 15, 15(A), 15(F)(1) - State Pollution Control Board order dated 02.01.2024 regularizing 'back period' operations without prior consents by charging pro-rata fees and exempting environmental compensation held violative of statutory mandates requiring prior consents, principles of sustainable development, precautionary principle and polluter pays principle - Retrospective regularization undermines public trust doctrine and allows operation without accountability for environmental harm - Both penalty (back period fees) and environmental compensation on case-to-case damage assessment must be imposed - Order quashed and State PCB directed to amend notification per CPCB guidelines within 60 days. (Paras 5, 8-10, 13, 26-27)
(B) Polluter Pays Principle - Extends to compensation for victims and cost of restoring environmental degradation - No retrospective consents or regularization without accountability for past violations - Industries operating without consents liable for closure, penalties and compensation covering remediation, restoration and third-party damages. (Paras 3, 13, 15-19, 24)
(C) Environmental Compensation Methodology - Cases of operation without consents post-expiry fall within scope requiring levy even if not explicitly listed - State boards cannot dilute via back period fees alone; must align with national guidelines and recover deterrent compensation for restoration. (Paras 6, 13)
Facts of the case:
Appeal challenging State Pollution Control Board order dated 02.01.2024 streamlining back period fees for units operating without consents, defining back period as gap between consent expiry and renewal application, charging pro-rata fees, granting retrospective consents and exempting environmental compensation for regularized period - Appellant contended violation of environmental statutes, polluter pays principle and judicial precedents; respondents defended as rationalization to avoid dual penalties.
Findings of Court:
State PCB order beyond jurisdiction, contravenes statutes and principles; CPCB expert report forwarded for mandatory amendment within 60 days; strict compliance with prior consent requirements and guidelines directed; costs of Rs.5,000/- awarded to appellant.
Issues: Whether State PCB can regularize back period operations via fees exempting environmental compensation; compatibility with prior consent mandates, polluter pays principle and CPCB methodology.
Ratio Decidendi: Prior consents mandatory under statutes; regularization via back period fees without environmental compensation violates law, permits unaccountable pollution, contravenes polluter pays and precautionary principles; both deterrent penalty and damage-based compensation required; no retrospective permissions without accountability.
Result: Appeal allowed; impugned order modified per law and guidelines.
| Table of Content |
|---|
| 1. state pcb notification exempts ec for regularized back period. (Para 1) |
| 2. notification violates polluter pays and precautionary principles. (Para 2 , 3 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 3. rspcb procedures for back period fees and specific cases. (Para 4 , 10 , 11 , 12) |
| 4. consent requirements under air and water acts. (Para 5 , 6 , 7 , 8 , 9) |
| 5. cpcb report opposes retrospective consent regularization. (Para 13) |
| 6. order exceeds jurisdiction, violates environmental laws. (Para 26) |
| 7. appeal allowed; modify order per cpcb guidelines. (Para 27 , 28) |
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, m
