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THE NATIONAL GREEN TRIBUNAL
(PRINCIPAL BENCH), NEW DELHI
APPEAL No. 43/2012
15th March, 2013
CORAM:
1. Hon'ble Shri Justice V.R. Kingaonkar
(Judicial Member)
2. Hon'ble Shri Justice U.D. Salvi
(Judicial Member)
3. Hon'ble Dr. P.C. Mishra
(Expert Member)
4. Hon'ble Shri Ranjan Chatterjee
(Expert Member)
5. Hon'ble Shri Bikram Singh Sajwan
(Expert Member)
B E T W E E N:
DVC Emta Coal Mines Limited, through its
Authorized representative, having its place
of business at 5B, Nandalal Basu Sarani,
Kolkata-700 071 ....Appellant
AND
1. Pollution Control Appellate Authority (W.B.)
At " Paribesh Bhawan", 4th Floor, 10A, LA
Block, Sector-III, Salt Lake City, Kolkata-
700 098
Page 1 of 13
2. West Bengal Pollution Control Board,
"Paribesh Bhavan", 4th Floor, 10A, LA Block,
Sector-III, Salt Lake City, Kolkata-700 098
3. Sri Sanjay Singh, Executive Engineer,
Mayurakshi South Canal Division, Birbhum,
West Bengal-731101
(Advocates appeared : Mr. Kallol Basu, Advocate along with Mr.
Mangaljit Mukherjee, Advocate for Appellant. Mr. Nayan Chand Bihani,
Advocate along with Mr. Amit Agarwal, Advocate and Ms. Asha Nayar
Basu, Advocate for Respondent No. 2)
J U D G M E N T
By means of this Appeal under Section 16(1) (h) of the National Green Tribunal Act, 2010 the Appellant has challenged order dated 24th July, 2012 rendered by Pollution Control Appellate Authority (PCAA) of West Bengal (W.B.), upholding order dated 27th March, 2012 passed by Sr. Environmental Engineer & In-charge (Operation & Execution Cell) of West Bengal Pollution Control Board (in short, WBPCB). The WBPCB by order dated 27.03.2012 gave certain directions to the Appellant (M/s DVC Emta Coal Mines Ltd.). The Appellant is aggrieved by the direction to deposit of Rs. 10 lakh towards pollution cost for non-compliance of the environmental norms on account of dumping overburden generated from mining activity, in the nearby area, i.e. to construct a temporary barrier in the Hingla River, a tributary of river Ajoy. Challenge to other directions is waived by the Appellant during course of the hearing.
2. The Appellant was issued Consent to Establish (NOC),vide order dated 09.09.2011 for an open-cast coal mine at Khagra-Joydev Block in District Page 2 of 13 Birbhum by WBPCB on certain conditions. The project has not yet been granted the "Consent to Operate" . Therefore, the mining operation has not yet been started. Ajoy River passes from nearby place of the open-cast coal mine site . There is a Tributary of said river known as "Hingla" River. Before onset of dry season of the year 2012 some of the villagers of Joplai and Palashdanga under Loba Gram Panchayat submitted a mass petition to the Village Pradhan, informing that the residents of village had urged the Appellant to construct a temporary dam of 2 feet height in "Hingla" River in order to make available the river water for agriculture and other purpose during the dry season.
3. In the course of State Legislative Assembly Session, Hon'ble MLA of the Constituency raised a question pertaining to blockage of the natural flow of river Ajoy by dumping of overburden by the private sector collieries on the river bed. The WBPCB conducted enquiry in this context. The WB PCB found that the natural flow of river Ajoy was obstructed and diverted due to dumping of over-burden over a part of "Hingla" River i.e. the tributary thereof. The local irrigation department intervened in the matter and got partially removed the barriers. The Sr. Environmental Engineer & In-charge (Operation & Execution Cell) of the WB PCB thereafter gave direction to the Appellant vide communication dated 27.03.2012, holding the Appellant responsible for pollution due to dumping of over-burden and obstructing the natural flow of water in the river and hence directed him to deposit cost of Rs. 10 lakh as pollution cost on account of non-compliance of the environmental norms. Feeling aggrieved thereby, the Appellant preferred appeal no. A- 05/2012 before the Pollution Control Appellate Authority (for short, P.C.A.A.) Page 3 of 13 (W.B.) challenging the impugned order dated 27.3.2012 issued by WB PCB. The appeal was dismissed by the P.C.A.A. (WB) vide the impugned order. Hence the present appeal.
4. The Learned Counsel for the Appellant submits that the mining operation has not yet been started and therefore there could not be any violation of the conditions enumerated in the letter dated 09.09.2011 of consent to establish. He further submits that the inspection report was not made available to him by the WB PCB. Thus the Appellant was deprived of opportunity to show as to how the inspection report was incorrect and improper. The communication dated 27.03.2012 issued by the WB PCB and the impugned order of the Appellate Authority are in clear violation of principles of natural justice. He submits that both the authorities failed to establish that overburden of the mining material was generated by the Appellant. He submits that the local villagers used to erect small "bunds" to hold water in a small patch of 'Hingla' River for their use in dry season so as to meet their domestic requirements. They, as usual, had raised such "bunds" and obstructed the natural flow of the river during the lean water-flow period. He submits that the authorities of the WBPCB had failed to restrain the local inhabitants from making the 'bunds' and in order to cover up such inaction the liability has been fastened on the Appellant. He submits that the Appellant is not proved to be polluter and as such, is not liable to pay the pollution cost. Consequently, he urged to allow the Appeal.
5. The Appellant raised several grounds in the Appeal Memo regarding the nature of directions dated 27.03.2012 issued by the WB Pollution Control Board through the Sr. Environmental Engineer & In-charge (Operation & Page 4 of 13 Execution Cell). During the course of the arguments, Mr. Kallol Basu, Advocate appearing for the Appellant made a statement that he has no objection to other directions shown at serial nos. 1 to 4 in the said communication. He restricted his argument only to the extent of the direction no. 5 whereby the Appellant has been directed to pay Rs. 10 lakh as pollution cost. He submits that the Appellant shall comply with the other four (4) directions shown at serial nos.1 to 4 of the communication dated 27.03.2012 issued by the Sr. Environmental Engineer & In-charge (Operation & Execution Cell) of West Bengal Pollution Control Board.
6. The Learned Counsel for the Respondent supported the communication dated 27.03.2012 issued by the WB PCB as well as the impugned order. He submits that the representatives of the Appellant were called upon to participate in the enquiry and an enquiry was held in the presence of the representatives of the Appellant and minutes of the hearing dated 17.02.2012, were drawn in accordance with the discussions. The fact that the natural flow of the river was obstructed by raising temporary barrier on account of overburden extracted from the site of the proposed open-cast coal mine was not disputed during the course of the meeting. The representatives of the Appellant had not denied that the dumping was done by using the waste material generated due to land development activity at the site of the proposed mine of the Appellant. The representatives of the Appellant were heard during the course of the discussions in the meeting dated 17.02.2012 and as such the WB PCB did not violate principles of natural justice. He submits that the Appellant's purported story of dumping the overburden generated from the mining site by some villagers was found to Page 5 of 13 be untenable because the Appellant never gave any such report nor filed FIR for so called removal of the waste material from the site of the mine. He submits that the Appellant failed to adduce any evidence in support of such removal of the material from the site of the proposed mine by use of force and gave no details to identity so called persons who have done such act. He further submits that the Appellant failed to raise any ground before the first Appellate Authority in the context of quantum of the pollution cost which is directed to be paid under the directions issued by the concerned authority of the WB PCB. He submits that the Memorandum of Appeal filed before the Pollution Control Appellate Authority (P.C.A.A.) (W.B.) does not contain any specific ground as regards the quantification of the pollution cost. He submits that the Appellate Authority has not committed any irregularity or illegality in passing of the impugned order. He urged, therefore, to dismiss the Appeal.
7. Before we proceed to consider merits of the matter, let it be noted that we entertained doubt whether the Appeal can be straightway admitted or it being in the nature of second Appeal, it may not be admitted at all unless it is demonstrated that it involves "substantial question of law" and satisfies the parameters of Section 100 of C.P. Code. No such objection is, however, raised by the Respondents. The Counsel for the Appellant pointed out that the directions issued vide communication dated 27.03.2012 cannot be equated with "Decree" of the Civil Court. The term "Decree" is defined under Section 2 (2) of the C.P. Code. Section 2 (2) reads as follows:
" 2. Definitions. - In this Act, unless there is anything repugnant in the subject or context, -
Page 6 of 13 (1). Xxxxxxxxxxx (2). "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
8. The plain reading of the above provision would make it amply clear that the decree is an outcome of formal expression of adjudication of lis between the parties. The directions issued by the WB Pollution Control Board cannot be treated as 'Decree'. For, the WB Pollution Control Board gave the directions on the basis of inspection report and on the basis of finding that the Appellant did not abide itself by certain conditions laid down in the NOC issued vide Memo No. 539-2N-246/2006(E) dated 09.09.2011.There was no trial as such. The delegated authority of WB Pollution Control Board did not raise specific issues and gave specific findings on such issues, by recording of evidence, or holding trial. In other words, the delegated authority of the WB Pollution Control Board did not have "trappings of a court".
9. Apart from the nature of order passed by the delegated authority of the WB Pollution Control Board, it is pertinent to note that the National Green Tribunal Act, 2010 specifically provides for an Appeal under Section 16(a) against an order or decision of the Appellate Authority under Section 28, so also, Section 33 A of the Water (Prevention and Control of Pollution) Act, 1974 (for short, Water Pollution Act) to the National Green Tribunal. Thus, the National Green Tribunal has appellate powers against such orders passed by Page 7 of 13 the State Pollution Control Board or Appellate Authority. It may be mentioned here that Section 28 (1) provides for an Appeal against order made by the State Pollution Control Board under Section 25, Section 26 and Section 27 of the Water (Prevention and Control of Pollution) Act, 1974. However, it appears that directions were given by the (WB) Pollution Control Board in the exercise of powers under Section 33 (A) of the Water Pollution Act. It would be useful to refer Section 33 (B) of the Water Pollution Act. It reads as under:
"33B. Appeal to National Green Tribunal. - Any person aggrieved by, -
(a) an order or decision of the appellate authority under section 28, made on or after the commencement of the National Green Tribunal Act, 2010; or
(b) an order passed by the State Government under section 29, on or after the commencement of the National Green Tribunal Act, 2010; or
(c) directions issued under section 33A by a Board, on or after the commencement of the National Green Tribunal Act, 2010, may file an appeal to the National Green Tribunal established under section 3 of the National Green Tribunal Act, 2010, in accordance with the provisions of that act."
10. It is necessary to examine whether the delegated authority of the WB Pollution Control Board had the power to direct payment of Rs. 10 lakh as pollution costs. What appears from the record is that the villagers urged the Appellant to construct a temporary dam in the midst of the river "Hingla" so that in the dry season water can be made available for agriculture and other purposes. It appears that the Appellant raised barrier of 2 feet height in the river as per the request of the villagers of Joplai and Palashdanga under Loba Gram Panchayat. There is no serious dispute about the fact that inspection was carried out by the competent authority. The relevant inspection report is Page 8 of 13 placed on record. It was found that the natural flow of the river "Hingla" diminished due to construction of a temporary dam by dumping over-burden on the main course of the flow. An enquiry conducted by the local authority showed that the over-burden was obtained from the mining activities of the Appellant. The Appellant did not file any report with the Police regarding illegal removal of the soil/over-burden from the site of open-cast coal mine. The Appellant did not give any information to the police as to who had taken away the soil for construction of the temporary dam. The representatives of the Appellant were present when minutes of the hearing, held on 17.02.2012, were drawn. Perusal of the said minutes reveal that the representatives of the Appellant failed to give any tangible evidence in support of their claim that the soil extracted from the open-cast coal mine site was forcibly taken away by the local villagers. As stated before, representation made by the local villagers to the Gram Pradhan of Loba Gram Panchayat also reveals that the barrier was constructed by the Appellant. The minutes of the meeting dated 17.02.2012 further show that it was decided to impose penalty on the Appellant for recovery of pollution cost for its "indifferent attitude" in the matter. It was decided that the amount of pollution costs may be determined by the competent authority. It is in accordance with such decision taken in the meeting dated 17.02.2012 that the Sr. Environmental Engineer & In-charge (Operation & Execution Cell) who appears to be a delegated authority of WB Pollution Control Board, issued the directions dated 27.03.2012.
11. Now, the most important legal issue involved in the appeal is : Page 9 of 13
(i) Whether the WB Pollution Control Board is competent to give direction for recovery of such pollution cost in exercise of the powers available in Section 33 and Section 33(A) of the Water Pollution Act ?
12. It may be pointed out here that no such question was raised by the advocate for the Appellant. We were rather surprised to take note of the fact that the Advocate for the Appellant failed to argue that the WB Pollution Control Board had no competency to give direction for recovery of the pollution cost (Rs. 10 lakh) . We are also dismayed to note that the counsel for the respondent did not pinpoint as to how the WB Pollution Control Board was or is competent to direct the Appellant to deposit pollution cost of Rs. 10 lakh.
13. Perusal of Section 33 and Section 33(A) of the Water Pollution Act clearly shows that the Board is required to file an application to the concerned Magistrate for injunction or for removal of any matter from stream or well and in case it is not removed by the person concerned, then to take action under sub-section 4 of Section 33. We did not find any kind of power available to the Pollution Control Board to give direction for recovery of the pollution cost.
14. In Splendor Landbase Ltd. vs. Delhi Pollution Control committee, reported in 173(2010) Delhi Law Times-52 , Hon'ble Delhi High Court had an occasion to interpret Section 33(A) of the Water Pollution Act. Relying upon judgment of the Apex Court in the case of M/s. Khemka & Co. (Agencies) private limited vs. State of Maharashtra (1975) 2 SCC 22, the Hon'ble Delhi High Court observed :
"In the considered view of this Court, the power to levy a penalty on any party is in the nature of a penal power. It is settled law that Page 10 of 13 unless there is a specific power in the Statute enabling the authority to do so, it cannot levy penalties or damages with reference to the general power under Section 31A of the Air Act or Section 33A of Water Act."
xxxxxxxxxxxxxxxx "This court has, therefore, no hesitation, in coming to the conclusion that orders issued by the CMC or even the DPCC in the instant case levying penalty and requiring furnishing of bank guarantees and making the grant of consent to establish under the Water Act and consent to operate under the Air Act conditional upon payment of such penalties and furnishing of such bank guarantees, are entirely without the authority of law and require to be set aside."
15. Let it be noted that Section 25 of the Water Pollution Act empowers the Board to impose conditions on the industrial units which may apply for consent to operate. There are penal provisions which make a person liable for punishment when it is found that conditions set-out under Section 25 or Section 26 of the Water Pollution Act are not complied with. The powers available under Section 33(A) of the Water Pollution Act are circumscribed by the other provisions of Water Pollution Act. Moreover, the competent authority is required to follow the procedure enumerated in the Water (Prevention and Control of Pollution) Rules, 1975. Rule 34 envisages the manner in which such directions are required to be issued by the competent authority. Significantly, Rule 34(3) categorically provides that a copy of the proposed direction shall be given to the person against whom the same are required to be issued. It will be beneficial to reproduce Section 34(3) for ready reference.
It reads as follows:-
Page 11 of 13
"34. Directions. - (1) xxxxxx (2). Xxxxxx (3) The person, officer or authority to whom any direction is sought to be issued shall be served with a copy of the proposed direction and shall be given an opportunity of not less than fifteen days from the date of service of a notice to file with an officer designated in this behalf the objections, if any, to the issue of the proposed direction."
16. There is nothing on record to show that proposed directions were communicated to the Appellant as required in the manner stated above. Needless to say there is non-compliance of Rule 34(3) of the Water (Prevention and Control of Pollution) Rules, 1975. For this reason, the impugned direction issued by the WB Pollution Control Board is bad in law since it has been issued without having any legal authority. We are of the opinion that the Pollution Control Appellate Authority (P.C.A.A.) (WB) failed to take into account this important legal flaw while passing the impugned order dated 24.07.2012. The Appellate Authority committed error while holding the Appellant vicariously liable and to uphold the direction to pay pollution cost. We are of the opinion that the WB Pollution Control Board may not issue consent to operate the unit unless the other conditions enumerated at serial nos. 1 to 4 in the directions issued by the WB Pollution Control Board are complied with by the Appellant. The grant of consent to operate or to refuse the same if certain conditions are not complied with by the Appellant, is within the discretion of the Board (WB PCB).
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17. Similarly, this Tribunal in Appeal No. 10/2011 Hindustan Cocacola Beverages Pvt. Ltd. vs. WB Pollution Control Board examined identical question of law and held that the Board has no power to direct recovery of pollution cost. Considering the reasons discussed above, we have no hesitation in holding that the WB Pollution Control Board committed patent error while directing the Appellant to pay pollution cost of Rs. 10 lakh and the Appellate Authority also erred in confirming such order. Hence the Appeal will have to be allowed.
18. In the result, the Appeal is allowed and the impugned direction to deposit pollution cost of Rs. 10 lakh by the Appellant is set-aside. We make it clear that if the other conditions shown at serial nos.1 to 4 of the impugned order dated 27.3.2012 of WB PCB are not complied with by the Appellant, the Pollution Control Board is at liberty to take further action in accordance with law, including refusal to grant consent to operate.
The Appeal is accordingly partly allowed and disposed of with no order as to costs.
.........................................., JM (V. R. Kingaonkar) .........................................., JM (U. D. Salvi) ........................................, EM (Dr. P.C. Mishra) ........................................., EM (RanjanChatterjee) ..........................................., EM (B.S. Sajwan) Page 13 of 13