Retrospective regularization of operations without prior environmental consents via fees, exempting compensation, violates statutes and Polluter Pays Principle; requires prior consents, penalties, and damage-based compensation.

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