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Judgment
Heard Mr. A.R. Takkar, assisted by Ms. Shriya Takkar & Ms. Unnati Anand, Advocates for Appellant.
This appeal has been preferred under Section 16 read with Section 18 of National Green Tribunal Act, 2010 (hereinafter referr6ed to as ‘NGT Act, 2010’) assailing the order dated 17.07.2021 passed by Punjab Pollution Control Board (hereinafter referred to as ‘PPCB’) and appellate order dated 10.08.2022 passed by the appellate authority.
The competent assessing authority has imposed environmental compensation of Rs. 1,14,62,500/- upon the appellant vide order dated 17.07.2021 and the same has been confirmed by appellate authority by impugned appellate order dated 10.08.2022.
Leaned counsel for the appellant has assailed the aforesaid two orders on two grounds. Firstly, that the industry never came into production and therefore, there was no question of violation of any environmental law relating to consent to operate under the provisions of Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as ‘Water Act 1074’) and Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as Air Act 1981 and authorization under Hazardous Waste Management Rules, 2016 (hereinafter referred to as HWM Rules 2016 and therefore, imposition of environmental compensation is illegal.
Secondly, it is contended that even while applying the formula for computing the aforesaid compensation, the respondent authorities have erred in law in as much as the compensation has been computed since the date when Consent To Establish (hereinafter referred to as ‘CTE’) was granted to appellant i.e., 09.01.2019. Admittedly the unit itself commenced process for its establishment on and after 09.01.2019, hence, the question of running any production in the unit from 09.01.2019 does not arise.
So far as the first aspect is concerned, we find that during inspection the authorities found that the appellant had six storage tanks of capacity of 10,000 ltrs each out of which four tanks were half filled with acid, with composition of HCl and H2SO4 , ratio of 4:1 and 5:1. This has been found as per the sample collected from the storage tanks and the result of analysis, mentioned in the notice dated 28.06.06.2021, issued by Chairman, PPCB wherein results of report are reproduced as under:-
“
Sr. No.
Point of sample collection
Results (Qualitative analysis)
Ratio
1
Acid storage tank (red)
H2SO4 & HCl
HCl 4:1 H2SO4
2
Acid storage tank (Brown)
H2SO4 & HCl
HCl
5:1
H2SO4
”
Secondly the authorities found that the consumption of electricity commenced in January, 2020 but in June 2022 and onwards consumption suddenly has risen. The chart of electricity consumption reads as under:
“
S.No.
Bill date
Units consumed in (KWH)
Amount in Rs.
1.
20 January17 2020
628
15,770/-
2.
17 February 2020
592
15,630/-
3.
18 March 2020
798
15,721/-
4.
20 April 2020
542
9,840/-
5.
18 June 2020
3202
47,690/-
6.
15 July 2020
1744
72,010/-
7.
18 August 2020
1476
95,900/-
8.
18 September 2020
2396
30,060/-
9.
19 October 2020
2792
61,420/-
10.
17 November 2020
2404
91,570/-
11.
17 December 2020
2756
1,27,540/-
12.
18 January 2021
3064
1,61,340/-
13.
18 February 2021
2054
1,88,660/-
14.
15 March 2021
1088
45,080/-
15.
15 April 2021
832
59,230/-
16.
17 May 2021
2090
84,640/-
Total
28458
11,22,101/-
”
The aforesaid facts shows that there was substantial quantity of acid present on the site. This acid is one of the raw materials required for production of FeCl, found stored by the appellant and that quantity was after consumption of material during alleged testing period which appellant admits that it ran the unit for testing production. Further, sudden rise of consumption of electricity from June 2020 and onwards could not be explained. In that view of matter, we find no merit in the submission that the unit has never run into production. Even test run of production would have required Consent To Operate (hereinafter referred to as ‘CTO’). Admittedly no CTO was obtained by appellant. Hence, the view taken by the authorities on this aspect cannot be said to be erroneous either on facts or law.
Now coming to computation of environmental compensation, we find some substance in the submission that number of days for which amount of compensation has been computed is not correct in as much as compensation could not have been computed from the date CTE was issued but when there is material on record to show or atleast come to a reasonable conclusion based on record that production started from a particular day, computation of compensation must have correlation with such period and not earlier thereto. 10. Now taking from the chart of electricity consumption, we find prima facie that during June 2020 to May 2021, there was high quantity of consumption of electricity and therefore even test production of the unit as claimed by the appellant must have gone during this period but without obtaining any consent to operate under the Water Act 1974, and Air Act 1981 and authorisation under HWM Rules, 2016. 11. Taking the period of June 2020 to May 2021, it is about 365 days for which amount of environmental compensation comes to Rs. 42 lakhs and odd. We are of the view that if we appellant presently deposit Rs. 42 lakhs within two months, the respondent authority shall not proceed with recovery of further environmental compensation until further orders of this Tribunal. We order accordingly. 12. In the meantime, we issue notice to respondents who may file response to this appeal within two months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. 13. List for further consideration on 06.04.2023 after exchange of pleadings.
I.A. No. 337/2022
This application is seeking condonation of delay. Having considered the submissions, we find that the delay in filing this appeal deserves to be condoned.
The application is allowed. Delay in filing appeal is condoned.