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1 BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI, (PRINCIPAL BENCH) APPEAL No. 10 of 2011 Hindustan Cocacola Beverages Pvt. Ltd. Raninagar Industrial Growth Centre, P.O. Patkata, P.O. Jalpaiguri, District,Jalpaiguri-735153. Appellant/Petitioner Versus 1.West Bengal Pollution Control Board, Department of Environment of West Bengal) Paribesh Bhawan, 10-A, Block LA, Sector-III, Salt Lake, Kolkata-700098. 2.Chief Engineer, Operation and Execution Cell, West Bengal Pollution Control Board, Paribesh Bhawan, 10-A, Block-LA, Sector-III, Salt Lake, Kolkata-700098. 3. Senior environment Engineer, W.M.C. & Member and Convener-Technical Cell, West Bengal Pollution Control Board, Paribesh Bhawan, 10-A, Block-LA, Sector-III, Salt Lake,Kolkata-700098. 4. Assistant Environment Engineer In-Charge, West Bengal Pollution control Board Regional Office, “Paribesh Bhawan”, Paribahan Nagar, P.O. Matigara, Darjeeling-734010

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BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI,

(PRINCIPAL BENCH)

APPEAL No. 10 of 2011

Hindustan Cocacola Beverages Pvt. Ltd.

Raninagar Industrial Growth Centre,

P.O. Patkata, P.O. Jalpaiguri,

District,Jalpaiguri-735153.

Appellant/Petitioner

Versus

1.West Bengal Pollution Control Board,

Department of Environment of West Bengal)

Paribesh Bhawan, 10-A, Block LA,

Sector-III, Salt Lake, Kolkata-700098.

2.Chief Engineer, Operation and Execution Cell,

West Bengal Pollution Control Board,

Paribesh Bhawan, 10-A, Block-LA, Sector-III,

Salt Lake, Kolkata-700098.

3. Senior environment Engineer,

W.M.C. & Member and Convener-Technical Cell,

West Bengal Pollution Control Board,

Paribesh Bhawan, 10-A, Block-LA,

Sector-III, Salt Lake,Kolkata-700098.

4. Assistant Environment Engineer – In-Charge,

West Bengal Pollution control Board Regional Office,

“Paribesh Bhawan”, Paribahan Nagar,

P.O. Matigara, Darjeeling-734010

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Respondent/s

Counsel for Appellant:

Shri Amit Sibal, Advocate alongwith

Shri Paras Choudhary, Advocate

Counsel for Respondents:

Shri Soumya Chakraborty, Adovcate

JUDGMENT

PRESENT:

Justice A.S. Naidu (Acting Chairperson)

Dr. G.K. Pandey (Expert Member) ...................................................................................................

Dated 19th March, 2012 ….……………………………………………………………………

JUDGMENT BY THE BENCH

1. Appellant is a company incorporated under the

provisions of the Companies Act, 1956 and is engaged in

the business of manufacturing and sale of carbonated soft

drinks under the brand name of Coca-Cola Sprite, Limca,

Mazza, Thmps Up etc. and has a plant at Raninagar

Industrial Growth Centre, P.S. and District Jalpaiguri, West

Bengal.

2. The directions issued by West Bengal Pollution Control

Board (WBPCB) to the Appellant Company by letter dated

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2nd May, 2011 is sought to be assailed in this Appeal. By

the said letter, WBPCB directed the Appellant Company as

follows:

“a) The industry shall ensure continuous and smooth

functioning of the pollution abatement system in all its

unit operations and comply with the environmental

standards.

b) The industry shall submit an action plan for

compliance of liquid effluent discharge standard within a

time period of fifteen (15) days. The industry shall also

install suitable infrastructure for testing of the liquid

effluent samples so as to assess the characteristics of

the discharged effluent.

c) The industry shall submit a Bank Guarantee

(proforma enclosed) of Rs. 5,00,000/-(Rupees five lakhs)

only, valid for twelve (12) months within fifteen (15) days

from the date of issuance of this Direction as an

assurance to comply with the above directions. ”

The directions are impugned mainly on the

following grounds:

“i) The WBPCB had no power / jurisdiction to impose

pollution cost or direct the Appellant to furnish a Bank

Guarantee as penal measure.

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ii) The Appellant’s right of hearing was denied before

issuance of the said directions, thus there was violation

of principle of natural justice and equity.

iii) The order is an after thought, and the same has no

nexus with the last analysis report of the discharged

effluent.

In the alternative it is contended that the procedure

prescribed under the Air Act and Water Act and Rules made

there under were not followed by the WBPCB before imposing

the fine/penalty.

3. To appreciate the inter-se controversy it would be just

and proper to refer to some of the facts. The Appellant was

granted consent under Section 25 and 26 of the Water

(Prevention and Control of Pollution) Act, 1974 (Water Act)

and Section 21 of the Air (Prevention and Control of Pollution)

Act, 1981 (Air Act) by the WBPCB, for operating, a

manufacturing and bottling plant at Raninagar Industrial

Growth Centre, Jalpaiguri, on 19th September, 2000. The said

consent was extended time and again in consonance with the

provisions of both Water and Air Act.

4. On 5th August, 2010, the WBPCB issued a notice for

collection of samples from the Appellant’s plant. In consonance

with said notice samples were collected by the officials of

WBPCB from the premises of the Appellant’s plant on 6th

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August, 2010. According to the Appellant the specific

procedure stipulated under Section 21 of the Water Act for

collection of the samples were not followed, in as much as

neither the samples were divided into two parts in the presence

of the occupier or his agent of the Appellant nor they were

sealed, nor the signature of the occupier or his agent was

taken by the officers of WBPCB while collecting the samples.

Another set of samples were also collected from the premises

of the Appellant on 9th December, 2010. It is alleged, the said

samples were also collected without following the mandatory

procedure laid down in Section 21 of the Water Act.

5. On 16th December, 2010, WBPCB on the basis of the

analysis report of the samples which were collected on 6th

August, 2010, & 9th December, 2010, issued a show-cause

notice alleging violation of the regulatory standards, and called

upon the Appellant to show-cause, and to take necessary

steps to comply with the prescribed standards. The Appellant

was also asked to inform the office, the action taken in that

regard. It is averred that necessary cause was shown by the

Appellant, within the time prescribed indicating the measures

taken for eradicating the deficiencies. WBPCB, on 29th

December, 2010 once again took samples from the Appellant’s

plant and got the same analyzed. The analysis report dated

11th February, 2011 revealed that the samples collected on

29th December, 2010 were within the prescribed parameters.

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6. While matter stood thus, on 14th February, 2011 the

WBPCB issued another notice and directed personal

appearance of the Appellant before the Board, at Kolkata. In

compliance with the said notice the Factory Manager of the

Appellant Company it is stated, appeared before the Board and

advanced his submissions and contended that no violation of

the specified standards are committed. The grievance of the

Appellant is that without properly appreciating the fact that the

effluents of the plant satisfy / meet the standards prescribed

and that there is no violation, the WBPCB mechanically issued

the impugned order dated 2nd May, 2011 in purported exercise

of the power conferred upon it under Section 33 A of the Water

Act, and as such the said order cannot be sustained in law.

7. After receiving the notice from this Tribunal, the

Respondents appeared and filed detailed counter affidavit

repudiating the stand taken in different paragraphs of the

memorandum of appeal. It is contended that WBPCB is

authorized to monitor statutory compliances of Industries

operating in the State of West Bengal, with regard to different

pollution Control Laws including Water and Air Act, as well as

the rules framed there under. In usual course of business,

officers of WBPCB inspected the premises of the Appellant’s

Industry, after serving prior notice on 6th August, 2010 and 9th

December, 2010. In course of such inspections, the officials

collected samples of trade effluent in presence of competent

representatives of the Appellant Industry. It is emphatically

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contended that the samples, which were collected on 6th

August, 2010, and 5th October, 2010 were divided and kept in

bottles as per law and they were duly sealed and signed in

presence of the representatives of the Appellant concern.

Analysis of the samples so collected revealed that the

Appellant industry was manufacturing its products in gross

violation of the standards prescribed in the letter of “Consent to

Operate” and consequently the Appellant was called upon to

show-cause. After considering the cause shown, and on being

satisfied that it is a fit case where necessary stringent

directions should be issued, WBPCB directed the Appellant to

pay pollution cost of Rs. 5,00,000/- (five lakhs) and also to

submit a bank guarantee of Rs. 5,00,000/- (five lakhs) as an

assurance to comply with the directions issued vide order

dated 2nd May, 2011 in future. The action of the WBPCB, it is

contended, was strictly in consonance with the provisions of

the Water and Air Act and the submissions to the contrary are

unfounded.

8. The Appellant filed a rejoinder to the reply filed by the

Respondent more or less reiterating the stands taken in the

Memorandum of Appeal. The Respondents also filed a

counter to the Rejoinder, denying the allegations leveled

therein and in the Memorandum of Appeal.

9. Mr. Sibal, Learned Counsel appearing for the Appellants,

in course of arguments, took the stand that WBPCB lacked the

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power to impose penalty in the form of substantial amounts or

direct to submit Bank guarantee as an assurance to comply

with the directions issued either, under Section 33A or any

other provisions of the Water Act, 1974. According to Mr. Sibal

a pecuniary liability for non-compliance with any legal

obligations can be imposed only by clear, unambiguous and

express provisions of an enactment. In the case in hand, as

there is no such express and unambiguous provision in the

Water Act, WBPCB was not authorized or empowered to

impose any sort of penalty, thus the directions issued by the

impugned order are in excess of the jurisdiction conferred

upon it and it is a fit case where the said order may be set

aside.

10. In support of his contentions, Mr. Sibal relied upon the

decision of the Supreme Court in the case of M/s Khemka &

Co. (Agencies) Pvt. Ltd. Vs. State of Maharashtra (1975) 2

SCC 22, and of High Court in the case of Splendor Landbase

Ltd. Vs Delhi Pollution Control Committee (DPCC)

reported in 173 (2010) Delhi Law Times-52,

Referring to Section 25 of the Water Act, it is submitted that the

said Section empowers the Board to impose binding conditions

upon an Industry who seeks consent to operate. Section 44,

according to Mr. Sibal stipulates that whoever contravenes the

provisions of Section 25 or Section 26 shall be liable to be

punished with imprisonment for a term which shall not be less

than one year and six months but which may extend to 6 years

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and with fine. Similarly, Section 41 stipulates the penalty

which can be imposed in the event of any failure to comply with

the directions issued under Section 20(2) or Section 20 (3) or

orders issued under Section 32 (1) (c) or directions issued

under Section 33 (2) or Section 33A of the Water Act. Placing

reliance on Section 49 of the Water Act, it is submitted that

only a Court which is not inferior to that of Metropolitan

Magistrate or a Judicial Magistrate is empowered to try any

offence punishable under the Act on the basis of complaint

made by the Board or any other person. No doubt Section

33A empowers the Board to give directions, but then the said

directions have to be subject to the provisions of the Act. A

cumulative reading of the different provisions of the Water Act,

it is contended, leads to an irresistible conclusion that only a

Metropolitan Magistrate or a Judicial Magistrate, has the power

to impose penalty if the directions issued by the Board are

contravened or violated. In view of the said clear position, it

cannot be presumed that Section 33A over rides the provisions

stipulated under Section 41, 44 and 49 of the Act. In other

words, the Powers under Section 33A is circumscribed by

other Provisions of the Water Act

11. The expression “any direction” in Section 33A according

to Mr. Sibal cannot be extended to a stage which would make

the provisions under Section 49 and other Sections otiose. In

support of his submissions Mr. Sibal relied upon the decision of

the Hon’ble Supreme Court in the case of Institute of

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Chartered Accountants of India Vs. Price Waterhouse

(1997) 6 SCC 312 and the decision in the case of Union of

India Vs Azadi Bachao Andolan and another (2004) 10 SCC

1.

12. Questioning the propriety of the WBPCB, with regard to

the directions to submit Bank guarantee of Rs. 5,00,000/- (five

lakhs), it is contended that the settled principal of law being

that a penalty cannot be construed as punishment or

commission of crime, no such direction can be issued under

Section 33A of the Act. In support of his submissions the

decision in the case of N.K. Jain and Ors. Vs C.K. Shah and

Ors. (1991) 2 SCC 495, was relied upon.

13. By way of alternative argument, Mr. Sibal, submitted

that even if for the sake of argument it is held that the WBPCB

had power under Section 33A of the Water Act, the said power

can be exercised only in consonance with the provisions of the

Act and Rules or not at all. Drawing our attention to Rule 34 of

the Water (Prevention and Control of Pollution) Rules, 1975, it

is submitted that the Authorities had not complied with the

mandatory requirements of the said Rules, in as much as

before issuance of the impugned directions, the nature of

action proposed to be taken and the time within which it should

be complied with, was not intimated nor any show cause was

called for with regard to the proposed punishment. Placing

reliance on Sub Rule 5 of Rule 34 it is further submitted, that

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as no opportunity was granted to the Appellant to file a show

cause / objection, impugned directions cannot be sustained.

14. Mr. Soumya Chakraborty, Learned Counsel appearing

for WBPCB and other Respondents, countenancing the

arguments advanced on behalf of the Appellant, submitted that

the powers conferred upon WBPCB under Section 33A are

very wide. The Section itself empowers WBPCB to issue any

directions in exercise of its power and performance of its

functions. The directions issued under Section 33A are

compensatory in nature. Causing pollution and or harm to the

environment leading to violation of the norms prescribed under

the Act and Rules. The same being tortious acts, un-liquidated

damages in the form of imposition of pollution cost/damages

can be directed. The directions issued to furnish a Bank

Guarantee were aimed to secure future observance of

environmental norms and the same should not be construed as

a penalty. Thus, according to Mr. Chakraborty, WBPCB acted

in consonance with law and the submission to the contrary

were unfounded.

15. In support of his submission, several decision of

Supreme Court dealing with the principles of sustainable

development, precautionary principle and polluter pays

principle were relied upon. The polluter pays principle, it is

submitted is the ethos of international environmental

jurisprudence in the matter of correcting a civil norm by award

of cost / damages on a polluting industry. The core of the

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principle, derives from the fundamental proposition, that the

person who generate pollution should bear the cost of

abatement. In order to further fortify his submissions, Mr.

Chakraborty relied upon following decisions of the Hon’ble

Supreme Court:-

i) Indian Council for Enviro Legal Action and Ors. vs.

Union of India & Ors. (1996) 3 SCC 212.

ii) Vellore Citizens’ Welfare Forum vs. Union of India &

Ors. (1996) 5 SCC 647.

iii) M.C. Mehta vs. Kamal Nath & Ors. (2000) 6 SCC 213.

iv) Research Foundation For Science (18) vs. Union of

India & (2005) 13 SCC 185

v) Karnatak Industrial Areas Development Board vs. C.

Kenchappa & Ors. (2006) 6 SCC 371.

vi) Tirupur Dying Factory Owners Association vs. Noyyal

River Ayacutdars Protection Association & Or. (2009) 9

SCC 737.

16. There is absolutely no quarrel with the legal

preposition advanced by Mr. Chakraborty. In the case of

Tirupur Dying Factory Owners Association (Supra), the

Hon’ble Supreme Court, referring to the all previous

judgments, concluded that the concept of “Sustainable

Development” covers the development that meets the

needs of a person without compromising the ability of the

future generation to meet their own needs. It means the

development, that can take place, can be sustained by

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nature / ecology with or without mitigation. In such matters,

the required standard is that the risk or harm to the

environment or to human health is to be decided in public

interest, according to a reasonable persons test. The

development of the industries, irrigations sources and

power projects are necessary to improve employment

opportunity and generation of revenue, therefore, cannot be

ignored. In such, eventuality, a balance has to be struck for

the reasons that if the activity is allowed to go on, there may

be irreparable damage to the environment and there may

be irreparable damage to the economic interest.

17. The precautionary principle and the principle of polluter

pays are the integral part and parcel of National

environmental law. An Industry or a person who pollutes

the surrounding area or environment is bound to

compensate the persons who have suffered the loss

because of the activity. An industry or a person being

responsible for causing the pollution cannot escape the

responsibility of not meeting the expenses of removing the

damages caused and restoring the environment to its

original position.

Section 20 of the National Green Tribunal (NGT) Act, 2010

clearly lays down the principle upon which this Tribunal

should function. The said Section reads as follows:-

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“ 20. Tribunal to apply certain principles:- The Tribunal

shall, while passing any order or decision or award,

apply the principles of sustainable development, the

precautionary principle and the polluter pays principle.”

Thus it is no more res-integra, with regard to the legal

proposition that a polluter is bound to pay and eradicate the

damage caused by him and restores the environment. He

is also responsible to pay for the damages caused due to

the pollution caused by him.

18. In the case in hand, most of the facts are admitted

except the allegations that the samples were not collected

from the Appellant’s plant following the prescribed norms of

Section 21 of the Water Act and that no adequate

opportunity of hearing was granted to the officers of the

Appellant concern before issuing the impugned directions.

The said allegations are stoutly denied by the Respondents.

Be that as it may, the allegations and counter allegations

being factual aspects, we do not propose to enter into such

factual disputes at this stage, as the controversy can be

decided on other broader issues.

19. The most crucial issue which needs to be determined

is with regard to the power of the WBPCB to issue

directions under Section 33A of the Water Act. According to

Mr. Sibal , the power under the said Section cannot be

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construed to be an unbridled one and should always be

subject to other provisions of Act and Rules. Whereas

according to Mr. Chakraborty, exercising the powers under

Section 33A , the WBPCB can issue any direction in writing

and such powers cannot be restricted or curtailed.

Section 33A of the Water Act, stipulates that

notwithstanding anything contend in any other law, but

subject to the portions of the said Act, and to any direction

issued by the Central Government, a Board may, in exercise

of the powers and performance of its functions under the

Act, issue any directions.

Law is well settled that a direction issued by an

Authority should be not only fair, legitimate and above-board,

but also should be without any affection or aversion (See

AIR 1988 SC 157). An authority should not issue any

direction which lacks bonafide and / or otherwise in

justiciable. The rule of law warrants that a direction should

be issued by application of due diligence and the same

should be within the parameters of the known principles,

rules and guidelines. A direction should have nexus to the

facts and circumstances and should not be arbitrary. It can

be, therefore, safely concluded that Section 33A of the

Water Act does not vest an unbridled power upon the Board

and the said power is always subject to reasonable

restrictions prescribed by the provisions of Act and Rule.

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20. In the case of Splendor Landbase Ltd. Vs Delhi

Pollution Control Committee (Supra) Hon’ble Delhi High

Court interpreting Section 33A of the Water Act, relying

upon the judgment of the Supreme Court in the case of

Khemka & Co. (Agencies) Pvt. Ltd. vs. State of

Maharashtra, observed as follows:-

“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

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.”

In paragraph 66 of the judgment the Hon’ble

Delhi High Court further observed:-

“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

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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. Procedural violations

by the DPCC.”

It is needless to say that the facts of the said case are

more or less similar to the facts of the case in hand.

21. According to Mr. Chakraborty, the decision of the

Hon’ble Delhi High Court being hit by the principles of sub-

silentio should not be taken as a precedent. It is submitted

that the Hon’ble High Court has not taken into consideration

the decisions of the Hon’ble Supreme Court with regard to

applicability of the principle of the polluter should pay. Thus

the decision is per incurium. The said submission is

strongly repudiated by Mr. Sibal. According to him there is

no dispute with regard to the principle that polluter should

pay. But then while applying the said principle the

authorities have to assess the damage caused to the

environment and the amount which is required to restore

the damage. Referring to the impugned order, Mr. Sibal

submitted that the Board has neither followed the

mandatory requirements of the Act and Rule in as much as

the provisions of Rule 34 were given a complete go-bye nor

assessed the damages if at all caused, thus the order

suffers from arbitrariness and is not sustainable in law. We

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find some force in the submission of the Learned Counsel

for the Appellant.

22. It is admitted that a set of samples were collected by

the WBPCB from the plant of the Appellant on 5th October,

2010. The said samples were analyzed and the discharge

effluent was found to be not in conformity with the

prescribed parameters, as would be evident from Annexure-

C-3. WBPCB on the basis of the said analysis report, called

upon the Appellant to show cause and also directed it to

rectify the violations. It appears that Appellant submitted a

reply to the show cause notice, and also assured the

WBPCB that necessary preventive steps shall be taken to

rectify the violations.

23. The WBPCB on 5th October, 2010 once again

collected some samples and got it analyzed. The said

analysis also revealed that the effluents were not in

consonance with the standards fixed by the Board. The

Appellant was once again called upon to show cause.

24. The Appellant, submitted a detailed show cause

enclosing all documents, and intimated the steps taken for

eradicating the violations. Thereafter the officers of the

WBPCB visited the Plant of the Appellant on 29th

December, 2010 and collected samples. The said samples

were duly analyzed and on such analysis, it was found that

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the discharge effluents satisfied the standard prescribed

and there was no violation.

25. The WBPCB on 2nd May, 2011, issued the impugned

directions relying upon the analysis report of the specimen

which were collected on 6th August, 2010 and 5th October,

2010, and called upon the Appellant to deposit Rs.

5,00,000/0 (five lakhs) towards pollution cost and also

submit a Bank Guarantee to the tune of 5,00,000/- (five

lakhs). The said order is silent about the analysis report of

the specimen collected on December, 2010, though the

same was available with the WBPCB on the date when the

direction was issued i.e. May, 2011.

26. Several contentions of both law and facts were raised

by the Learned Counsel of both the parties. They have also

relied upon number of decisions in support of respective

contentions raised. However, without entering into the

arena of controversy we feel, this Appeal can be disposed

of only on the basis of a factual error. Admittedly the

analysis of samples collected from the Appellant’s plant on

6th August, 2010 and 5th October, 2010 revealed that, the

discharge effluent failed to comply with the standards

prescribed. The WBPCB, on the basis of such reports, on

each occasion had issued notice to the Appellant and not

only called upon it to show cause but also directed them to

take appropriate measures to maintain the standard with

regard to the discharged effluent. The Appellant had not

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only shown cause but also assured the WBPCB that

necessary steps are being taken to avoid any violation.

Fact remains the WBPCB did not take any coercive action

nor issued any direction to the Appellant at that stage and

remained silent.

27. WBPCB once again carried out inspection on 29th

December, 2010 and collected specimen from the Effluent

Treatment (ET) plant of Appellant. It is not disputed that on

analysis it was found that the discharge effluent satisfied the

standards prescribed by the WBPCB and there was no

violation worth the name. In spite of the fact that the

analysis of discharged effluent collected from the

Appellant’s plant in the month of December, 2010, was

found to be in order after analysis and within the standards

prescribed, the WBPCB for the reasons best known issued

the impugned direction in the month of May, 2011. In other

words when the directions to deposit pollution cost of Rs.

5,00,000/- (five lakhs) and as well to submit a bank

guarantee of Rs. 5,00,000/- (five lakhs) was issued, there

was no material before the WBPCB leading to the

conclusion that the Appellant was violating any of the terms

embodied in the letter of consent or that the discharged

effluent from the Appellant’s ET plant failed to comply with

the standards prescribed.

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Apart from the aforesaid anomaly, even according to

law, before applying the principle of “polluter should pay”,

an authority has to first ascertain and determine the

damage caused by the polluter and the amount which is

necessary to rectify the damage. Even otherwise the

amount so realized is required to be utilized for the purpose

of restoring the environment and not otherwise. On the

absence of such assessment, it would not be justified to

arbitrarily direct a person to deposit a lump sum amount.

The aforesaid facts and position of law were not kept in

mind while passing the impugned order and as such the

same cannot be sustained in the eye of law.

28. Before parting we feel it proper to express our concern

with regard to presence of heavy metals such as lead (Pb)

and cadmium (Cd.) in the discharged effluent. Presence of

said substances in the effluent would finally contaminate the

environment, and shall cause hazards to human life. It

appears, no steps, howsoever has been taken by the

WBPCB or by the Appellant to trace out the source of such

heavy metals found in the effluent. It is quite possible that

heavy metals / (Pb, Cd etc.) may also be present in the

products. We, therefore, direct the WBPCB as well as the

Appellant to conduct analysis of the water and raw materials

used for the purpose, and not only detect the source but

also take appropriate steps for eradicating the same so as

to avoid any adverse health impacts.

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29. In view of the discussions made above, we allow the

Appeal and set aside the direction dated 2nd May, 2011

issued by the WBPCB and call upon the said Respondent to

proceed in accordance with law. We also direct the Central

Pollution Control Board, New Delhi / Zonal office at Kolkata,

West Bengal to collect the effluent discharged from the

Appellant’s plant following the paraphernalia laid down

under law, analyze the same in all aspects, particularly with

regard to presence of heavy metals (Pb, Cd etc.) and

prepare a report. It is needless to be said that the expenses

for the said purpose shall be borne by the Appellant

Company. The cost shall be assessed by the CPCB within

two weeks from the date of service/production of certified

copies of this judgment and same shall be deposited by the

Appellant with the CPCB within two weeks, therefrom. The

renewal of the consent to operate the plant would be

dependent on the report of the Central Pollution Control

Board.

A copy of this direction be communicated to CPCB, at

the cost of the Appellant.

Parties to bear their own cost.

Dr. G.K Pandey Justice A.S. Naidu Expert Member Acting Chairperson

Durga Malhotra 19

th March, 2012