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2024 Supreme(Online)(NGT) 4995
NATIONAL GREEN TRIBUNAL BHOPAL (CENTRAL ZONE BENCH)
HON’BLE MR. SHEO KUMAR SINGH, J, HON’BLE DR. AFROZ AHMAD, ACJ
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 clearances for environments violate statutory requirements and the Polluter Pays Principle, requiring consent before operations.
Headnote:(A) Environment (Protection) Act, 1986 - Water (Prevention and Control of Pollution) Act, 1974 - Air (Prevention and Control of Pollution) Act, 1981 - Notification issued by State Pollution Control Board regarding Environmental Compensation and back period fees - The Tribunal held that the notification violates established environmental laws and the Polluter Pays Principle, insisting that consent is mandatory before operation. (Paras 2, 26)
(B) Legal principles - The precautionary principle and the Polluter Pays principle are indispensable in environmental law, requiring accountability for operations without consent - Retrospective regularization contravenes environmental statutes. (Paras 15, 20)
(C)
Facts of the case:
The appellant challenged the notification exempting Environmental Compensation for past violations by industries operating without consent. The State Board's order allowed back period fees but failed to hold polluters accountable. (Paras 1, 10)
(D)
Issues: Whether the order of the State Pollution Control Board allowing retrospective consent and exemption from Environmental Compensation contravenes environmental laws. (Paras 2, 26) (E)
Findings of Court:
The court ruled that the State Board's notification undermines the principles of environmental accountability and that industries cannot operate without obtaining requisite consents. (Paras 26, 27) (F)
Ratio Decidendi: The Tribunal reiterated that retrospective clearances not only violate environmental laws but also compromise public health and safety. Any operational industry has to obtain requisite consents under prescribed environmental laws. (Paras 24, 26) (G)
Result: Appeal allowed; the State Board's notification modified in accordance with the law. Appellant entitled to cost of Rs. 5,000/- from the Board. (Paras 27, 28)
| Table of Content |
|---|
| 1. notification issued by state pcb regarding environmental compensation. (Para 1) |
| 2. violation of environmental laws by the notification. (Para 2 , 3) |
| 3. arguments and observations from state pcb and cpcb. (Para 4 , 5 , 6 , 7 , 9) |
| 4. state pcb justification for charging back period fees. (Para 10 , 12 , 14) |
| 5. judicial precedents on polluter pays principle. (Para 15 , 20 , 21) |
| 6. complicity of authorities in environmental degradation. (Para 22 , 23) |
| 7. ruling against retrospective consent and adherence to environmental laws. (Para 24 , 25 , 26) |
| 8. directives for compliance of environmental laws. (Para 27) |
| 9. order for litigation costs to the appellant. (Para 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.
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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.
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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 methodolog
