Sachin Sachdeva vs Delhi Pollution Control Committee

This appeal has been preferred against the order dated 29.11.2021 passed by DPCC reiterating assessment of environmental compensation of Rs. 4,44,40,000/- against M/s S.A.S. Colour Impact, B-108, Sector–2, DSIIDC, Bawana Industrial Area, Bawana Delhi, belonging to the appellant.

We have heard learned Counsel for the parties and perused the record.

Case of the DPCC against the Appellant is that on receiving complaint dated 20.7.2019 that the unit in question was operating in violation  of  the  environmental  norms,  inspection  was  conducted  by DPCC on 2.8.2019. It was found that the dyeing and washing of jeans were taking place but the ETP for treatment of effluent was not working. Accordingly,  vide  order  dated  29.8.2019,  DPCC  directed  closure  and payment of environmental compensation of Rs. 4,44,40,000/-. The appellant preferred W.P. (C) No. 11890/2019, Sachin Sachdeva v. DPCC before the Delhi High Court which was disposed of on 13.11.2019 with a direction to decide the representation of the appellant within two weeks. Extract from the said order is as follows:

“The learned counsel for the petitioner submits the Impugned Sealing Order dated 29.08.2019 has been passed by the respondent no. 1 without issuing a Show Cause Notice to the petitioner; the petitioner has already filed a representation against the said order with the respondent no. 1, however, the said representation has not been decided as yet.

The learned counsel for the respondent no. 1 submits that if an order on the representation has not been passed and communicated by the respondent no. 1 to the petitioner, the same shall be positively done within a period of two weeks after granting an opportunity of hearing to the petitioner.

Notice of such hearing shall be given to the petitioner at the address given in the Memo of Parties.

In view of the statement made by the learned counsel for the respondent no. 1, the present petition is disposed of.”

Thereafter  the  appellant  was  heard  on  6.12.2019.  Show  cause notice was issued on 11.6.2020 and impugned order was passed on 29.11.2021.  Basis  of  compensation  was  violation  of  Water  Act  from 1.7.2013, when the unit commenced upto 2.8.2019 at the rate of Rs. 20000/- per day.

Learned Counsel for the appellant submitted that assessment of compensation is disproportionate and arbitrary. Apart from the plea that the appellant had let out the unit on 26.4.2019 and was not liable and that inspection was not as per procedure under the Water Act and that the DPCC has passed order long after show cause notice, it was submitted that extent of pollution is merely an assumption. Well settled principles of reasonableness are not followed to show how violation is presumed  for  such a  long  past. Heavy  demand  ignores the  financial status of the appellant whose business has been shut down. His father remains ill. He suffered loss during Covid – 19. He has also not been able to recover payments from the persons to whom goods were sold. The income of the appellant was hardly Rs. 50,000 to 60,000 per month while compensation is 6 lacs per month. Value of his plot with construction is not more than Rs. 50 Lakhs.

The DPCC has filed its report supporting impugned order by stating that in pursuance of order of the Delhi High Court hearing was granted to the appellant on 06.12.2019, followed by show cause notice dated 11.06.2020. It considered the stand of the appellant which was as follows:-

“

(a) Sh. Sachin Sachdeva is in the business of fabrication, sale, purchase, trading of readymade jeans activity.

(b) The premises B-108, Sector-2, Bawana Industrial Area, Delhi-110039was taken on rent from Smt. Santosh Sachdeva (mother) vide Lease deed dated 12th September, 2013.

(c) Application for Consent under Water & Air Act in or around September, 2016 to carry out activities of readymade garment washing and subsequently, Consent Order was issued vide Certificate No. 0027696 dated 14th March, 2017 with the date of expiry of 20th September, 2021 for the activity of Readymade Jeans Washing in category "Orange".

(d) Due to personal reasons, the Appellant shut down the industrial activity of readymade jeans washing and subsequently, started sale, purchasing and trading of readymade jeans.

(e) Appellant entered into rent agreement with Sh. Ayush Jindal on 26.04.2019 and handed over the premises along with machines and that the premises is in the possession of Sh. Ayush Jindal to carry out activities till 02.08.2019.

(f) The directions issued on 29.08.2019 are in violation of principles of natural justice and without any Show Cause Notice.

(g) That DPCC has no jurisdiction, power or authority to impose EDC amount of Rs.4,44,40,000/- (Rs. Four Crore Forty Four Lacs Forty Thousand Only) and the same was imposed without any basis, methodology, enquiry and without having any authority to levy any penalty, which is discriminatory, arbitrary and violative of the principles of right to business equality.”

The  DPCC  found  that  the  activity  of  the  appellant  was  found operational. Stand  of  the  appellant  that  the  building  was  given  to someone else on rent was not substantiated. During inspection, ETP was found non-functional. Compensation was assessed taking the entire period  as  non-compliance  by  the  appellant  for  discharging  untreated effluent into the drain, in absence of appellant showing otherwise.

We have heard learned Counsel for the parties, considered the rival submissions and perused the record.

We find it is difficult to exonerate the appellant from the violation on unsubstantiated plea of renting out of the activity to someone else or mere  deficiency  in  procedure.  The  appellant  was  engaged  in  textile washing and it is now shown that it had functional system of discharge of effluent generated. Thus, causing of water pollution has to be accepted as a fact. Though exact period cannot be estimated, in common course of events, violation continued for substantial time. The appellant has not shown when ETP was functional. Period of three years can certainly be taken as the period of violation.

Plea of proportionality needs consideration as period of six years of violation may not be in the circumstances reasonable. Ad hoc compensation without estimated cost of restoration, financial capacity of the PP, extent of damage may not be justified. True, some guess work may be permissible, but in absence of relevant data, floor level quantum of compensation must be proportionate to the financial capacity of the PP. Mere stand that PP has earning of only Rs. 50000/- per month, without any material in support may not be treated as final but no estimate has been made by the authority assessing compensation which has been done without data or even reasonable estimate. No restoration plan has been indicated. Normally, assessment of compensation should be accompanied by restoration plan so that the amount of compensation remains distinct from revenue of the DPCC and is not mixed with general funds.

Having regard to the entirety of facts and circumstances, instead of setting aside the impugned order in its entirety, we are of view that compensation amount should be reduced to Rs. 15 Lakhs, to be deposited within one year and spent for restoration of water quality in the area in terms of District Environment Plan of the District. The amount is calculated taking loss of environment at Rs. 5 lacs per year for three years.

However, the unit may not be allowed to reopen without payment of compensation and ensuring compliance of environmental norms.

The appeal is disposed of accordingly.

In view of order in the main matter, I.A. No. 47/2022 also stands disposed of.