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2024 Supreme(Online)(NGT) 4628
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., Mr. Shoeb Hasan Khan, Adv.
Retrospective regularization of operations without prior environmental consents via back period fees, exempting compensation, violates polluter pays principle and statutory mandates; both penalties and damage 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's order dated 02.01.2024 regularizing 'back period' operations without prior consents by charging back period fees and exempting environmental compensation held violative of statutory consent requirements and principles of sustainable development, precautionary principle and polluter pays principle - No retrospective regularization of unauthorized operations allowed - Both back period fees as deterrent and environmental compensation for assessed damages must be imposed - Order quashed and State PCB directed to amend notification per CPCB guidelines within 60 days. (Paras 1, 5-14, 26)
(B) Environmental Law - Polluter Pays Principle - Polluters liable not only to compensate victims but also for cost of restoring environmental degradation - Regularization undermines statutory framework and public trust doctrine - Operations without consents tantamount to violations attracting penalties and compensation independent of regularization. (Paras 13, 24, 26)
Facts of the case:
Appeal challenging State Pollution Control Board's notification exempting environmental compensation for 'back period' (period of operation without valid consent) upon payment of pro-rata back period fees and granting retrospective consent regularization. Appellant contended violation of environmental statutes, polluter pays principle and judicial precedents. Respondents defended as streamlining measure to avoid double penalties. CPCB expert committee opined against retrospective regularization.
Findings of Court:
State PCB order beyond jurisdiction, contravenes statutes and settled principles - CPCB expert report forwarded for mandatory amendment of notification - Strict compliance with consent provisions and CPCB guidelines directed - Costs of Rs.5,000/- awarded to appellant.
Issues: Whether State PCB can regularize past unauthorized operations via back period fees without environmental compensation; validity under polluter pays principle and statutory consent mandates.
Ratio Decidendi: Retrospective consent regularization for back period operations violates mandatory prior consent requirements under environmental statutes and core principles of polluter pays and precautionary principle - Both deterrent penalties and compensation for environmental damage essential; no ex post facto approval without accountability.
Result: Appeal allowed; impugned order dated 02.01.2024 quashed and State PCB directed to modify per CPCB guidelines within 60 days.
| Table of Content |
|---|
| 1. state pcb notification exempts ec for regularized back period. (Para 1) |
| 2. notification violates polluter pays principle and statutory mandates. (Para 2 , 3 , 14 , 15 , 16 , 17 , 18 , 19) |
| 3. back period fees rationalize penalties without additional ec. (Para 5 , 6 , 7 , 8 , 9 , 10) |
| 4. riico cases require separate cte/cto and ec compliance. (Para 11 , 12) |
| 5. cte/cto mandatory; retrospective regularization violates law. (Para 13) |
| 6. polluter pays prohibits retrospective consent without accountability. (Para 20 , 21 , 22 , 23 , 24 , 25) |
| 7. pcb order exceeds jurisdiction, contravenes environmental principles. (Para 26) |
| 8. quash pcb order; direct compliance with 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
