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2024 Supreme(Online)(NGT) 2578
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 the Appellants/Petitioners: Mr. Prakash Pandey, Adv.
For the Respondents: Mr. Prashant Sthapak, Adv., Ms. Vanshika Dubey, Adv. (for Mr. Vaibhav Thakuria, Adv.), Mr. Shoeb Hasan Khan, Adv.
Retrospective regularization of operations without prior environmental consents by charging fees, exempting compensation, violates polluter pays principle and statutes; both penalty and case-specific environmental compensation required.
Headnote:(A) Water (Prevention and Control of Pollution) Act, 1974 - Sections 25, 26, 44, 45A, 45E; Air (Prevention and Control of Pollution) Act, 1981 - Sections 21, 39, 39D; Environment (Protection) Act, 1986 - Sections 3, 7, 14A, 15 - State Pollution Control Board order regularizing 'back period' operations without prior consents by charging fees instead of environmental compensation held violative of statutory provisions and principles of sustainable development, precautionary principle and polluter pays principle - No retrospective regularization of unauthorized operations without accountability for environmental damage - Both penalty and compensation leviable on case-to-case basis. (Paras 13, 26, 27)
(B) Polluter Pays Principle - Extends to compensation for harm to environment and cost of restoration, not mere regularization fees - Doctrine of 'pollute and pay' rejected; emphasis on 'polluter pays' for remediation and deterrence - Prior consents mandatory; operation without consents attracts closure and penalties under amended provisions. (Paras 3, 14, 15, 16, 19, 24, 25)
(C) National Green Tribunal Act, 2010 - Section 20 - Tribunal directs modification of State Board order to align with CPCB guidelines and judicial precedents prohibiting ex-post facto consents - Strict compliance with environmental statutes mandated. (Paras 26, 27)
Facts of the case:
Appeal challenging State Pollution Control Board order dated 02.01.2024 streamlining 'back period' fees for operations without valid consents, exempting environmental compensation upon regularization, contended as violative of environmental laws, polluter pays principle and prior judicial orders. Respondents defended as rationalizing dual penalties; CPCB expert committee opined against retrospective regularization without damage assessment.
Findings of Court:
State Board order beyond jurisdiction, violative of statutes and principles; directed to amend within 60 days per CPCB guidelines; costs of Rs.5,000/- awarded to appellant.
Issues: Validity of State Board order exempting environmental compensation for 'back period' upon fee payment; compatibility with prior consent requirements, CPCB methodology and polluter pays principle.
Ratio Decidendi: Retrospective regularization undermines statutory mandates and environmental principles; industries operating without consents liable for both deterrent penalties and compensation for assessed damages; no ex-post facto consents without accountability.
Result: Appeal allowed; impugned order to be modified per CPCB guidelines and law.
| 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) |
| 3. back period fees rationalize penalties without ec for consent gaps. (Para 5 , 6 , 7 , 8 , 9 , 10) |
| 4. riico cases require separate ec for never-applied operations. (Para 11 , 12) |
| 5. cte/cto mandatory; violations demand penalties and ec. (Para 13) |
| 6. retrospective regularization undermines sustainable development principles. (Para 20 , 21 , 22 , 23 , 24 , 25) |
| 7. state pcb order exceeds jurisdiction, violates environmental laws. (Para 26) |
| 8. quash order; direct compliance with cpcb guidelines and costs. (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,
