Bishamber Singh vs State of Haryana & Ors

This application, in substance, seeks directions for giving effect to order of this Tribunal dated 11.02.2020 in OA 599/2019.

Brief background of the issue raised is violation of environmental norms in the course of activities of M/s Rathi Mineral & Chemicals (the PP) at Village Bayal, 599/2019 vide order dated 11.2.2020 in the light of factual report of the CPCB, State PCB and District Magistrate. In view of the violations found, the Tribunal issued directions for remedial action.

In pursuance of order dated 11.2.2020, aforesaid, the State PCB passed order of closure dated 02.12.2020.

Aggrieved by the order of the State PCB, the PP preferred appeal before the Appellate Authority under the Water/Air Acts, being Appeal No. 98/2021. Vide order dated 03.02.2022, the said authority, ignoring the order of this Tribunal, set aside the closure order on the sole ground that closure was not permissible without second inspection.

Contention of the applicant Board is that the Appellate Authority could not have stalled the order of this Tribunal on untenable ground of requirement of second visit which concept was alien to the Statute and order of this Tribunal referred to above. Further, mere claim of subsequent compliance by PP was not enough to set aside order passed based on finding of violation.

Considering the above, in Appeal No. 37/2022, filed by the State PCB, vide order dated 02.09.2022, the Tribunal held that there was substantial question of environment which could be considered by treating the appeal as MA in the OA as appeal as such appeared to be time barred. Notice was directed to be served as to why the Appeal be not treated as MA and order of the Appellate Authority set aside.

Accordingly, we have heard learned counsel for the parties and by a separate order in Appeal, the appeal was directed to be treated as MA and has been heard as such. Legal position has been laid down by the Hon’ble Supreme Court vide order dated 16.11.2021 in Civil Appeal No. 6497-498/2021, Citizens for Green Doon vs. Union of India & Ors., that substantial question of environment could be gone into in exercise of original jurisdiction even if appeal was not entertainable. Observation in the said matter are :

“……….The Tribunal was moved by the appellant by invoking the jurisdiction under Section 14, under which it has jurisdiction to entertain civil cases where a substantial question relating to the environment, including enforcement of any legal right relating to the environment, is involved and such question arises out of the implementation of the enactments specified in Schedule I. The enactments which are specified in Schedule I include the FC Act. Thus, where a substantial question relating to the environment is raised involving the implementation of the FC Act, even the original jurisdiction of the Tribunal under Section 14 could have been invoked.

The Tribunal was not justified in rejecting the application filed by the appellants under Section 14 by observing that the appellant was attempting to circumvent the remedy of an appeal under Section 16. The Tribunal’s decision in the case of Vimal Bhai vs Union of India 2012 SCC OnLine NGT 77, paras 30-32 has placed the matter beyond doubt, by noting that “[t]he cause of action for filing an Appeal would commence only from the date when such publication is made in the newspapers, as well as from the date when the forest clearance and permission to use the Forest land for non-forest purpose is displayed in the website of the concerned State Government or the MoEF, as the case may be”. However, for the sake of clarity, we have set the legal position at rest in the discussion in the earlier part of this judgment.”

Case of the State PCB is that while the Tribunal found violations and directed remedial action, the Appellate Authority interdicted remedial action, thus defeating the direction of this Tribunal. If view of the Appellate Authority is to be sustained, order of this Tribunal cannot be given effect to.

The respondent - PP has filed its response on 10.10.2022, supporting the order of the Appellate Authority that the closure was not justified as the PP had taken remedial measures.

We have considered the rival submission. It stands established that there were violations which led to closure order. The appellate authority could not have interdicted the same merely on claim that there was compliance subsequently and thereby defeat order of this Tribunal requiring remedial action against compliance, which could include closure. The same could be interfered with only if not justified by the violation. Thus, we have no option but to set aside the order of the Appellate Authority to give effect to earlier order of the Tribunal for remedial ation against violations. We order accordingly. Order of the Appellate Authority dated 03.02.2022 in Appeal No. 98/2021 is quashed and the said appeal is dismissed. Order of the State PCB is upheld.

However, notwithstanding action for past violations, this order will not debar the State PCB to favourably consider the claim of the PP for compliance. We have noted that there is subsequent report of inspection conducted on 14.11.2022. Still, certain non-compliances have been found. The PP may remedy the non-compliances and file compliance report with the State PCB. If case is made out, the State PCB will be free to allow operation of the unit in accordance with the environmental norms, without prejudice to the action for the past violations.

M.A No. 84/2022 is disposed of accordingly.