Sudhir Agarwal, J. (Member (J))

1. This appeal under Section 18(1) read with Section 16(c) of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010'), has been filed by M/s. Waris Chemicals Pvt. Ltd., registered office at 117/H-1/349-B, Model Town, Pandu, Kanpur Nagar, Uttar Pradesh, assailing order dated 28.05.2020 issued by Regional Officer, Uttar Pradesh Pollution Control Board, Kanpur Dehat (hereinafter referred to as 'RO UPPCB'), imposing and demanding environmental compensation of Rs. 46,67,80,837.50. Environmental Compensation has been imposed, alleging dumping of hazardous waste containing chromium at village Khan Chandpur, Rania, Kanpur Dehat. Total 62225 MT of chromium waste was found dumped at the aforesaid site which was assessed proportionately among six units including appellant for the purpose of computing environmental compensation and appellant was directed to pay environmental compensation of Rs. 46,67,80,837.50.

2. Facts in brief as stated in the memo of Appeal: Appellant was incorporated and registered as a private limited company with the Registrar of Companies, Kanpur, UP on 26.04.1993. Initially appellant's company was named as Cerulean Sulphides Pvt. Ltd. but later on, title of the company was changed to M/s. Waris Chemicals Pvt. Ltd. vide Registrar of Company's Certificate dated 11.08.1994. Consent to Establish (hereinafter referred to as 'CTE') was issued by UPPCB, Lucknow on 05.09.1994 permitting appellant to establish its factory at plot no. 205-547, Village Umran, Rania, Kanpur Dehat. Appellant was permitted production of the following materials:

a) Sodium Dichromate 2 MT/day

b) Sodium Sulphide 2 MT/day

3. Raw material allowed to be used for the above production as per CTE dated 05.09.1994 was as under:

a) Chromite ore 1.5 MT/day

b) Soda ash 0.09 MT/day

c) Lime 1.0 MT/day

d) Sulphuric Acid 0.5 MT/day

4. CTE further shows that the unit was allowed zero discharge of effluent and the fuels allowed to be used for above production activities were as under:

a) Rice husk 5.50 MT/day (boiler)

b) Steam coal 5 MT/day (furnace)

c) Diesel 20 L/day (generator)

5. Various conditions were mentioned in the aforesaid CTE, some of which reads as under:

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"2. That progress report of establishment of relevant devices, plant, green belt, outflow purification plant and establishment of air pollution control arrangements in the industry, be submitted in this office at tenth date of every month.

3. That the testing of production should not be commenced in the industrial unit till receiving the consent from Board under Water Act and Air Act. That for the purpose of obtaining consent of water and air, the consent application shall be submitted in this office prior to minimum two months from the date of commencement of production. If, the industry will not comply with the above said conditions, then legal action may be taken against the industry without giving any prior intimation under the provisions of the aforementioned Acts.

4. That inspection by Regional Office be done prior to commencement of test of production.

5. Internal outflow, whose capacity shall not be exceeded from 2.4 K/day, shall be disposed of after purifying it by using Septic Tank, Soak Pit in accordance with the norms prescribed by the Board.

6. That copy of order of proposed treatment plant for pollution control and supply for construction work be submitted till 31.08.1994 in this office.

7. That the outflow generated during the process shall be recycled completely. The P.P.P. proposed for the spillage floor washing, sludge etc. and purification of other outflow shall be established and ensure to dispose of the outflow in accordance with the prescribed norms. Ensure to establish the purification plant with a period of one month.

8. That 30-30 meter-high chimney shall be installed with the boiler and furnace and the cyclone/dust collector shall be established in accordance with the prescribed norms. 82.5 KVA generator shall be kept at a height of 2.0 meters high Chimney.

9. Kindly ensure to submit the registry/purchase document or certificate in respect of proposed plant of the industry.

10. That the disposal of sludge shall be done in solid lined pieces so that the ground water shall not get polluted and no adverse effect shall be caused in the surrounding areas.

11. That 10 meters wide green belt shall be provided on the surrounding of the plot and maximum plantation shall be done in the open premises.

12. Ensure compliance of provisions of Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 and Hazardous Wastes (Management and Handling) Rules, 1989.

13. Ensure compliance of the provisions of Section 21 of Public Liability Insurance Act 1991."

(English Translation by Tribunal)

6. Appellant commenced its production on 04.02.1995. An intimation for commencement of production communicating to jurisdictional Trade Tax Officer vide letter dated 25.02.1995 is annexure A4 on p/73 of paper book. From the actual commencement of operation of unit in 1995, there were several intermittent durations in which company could not function and it was ultimately closed on 28.10.2004. Intimation of closure was communicated to RO UPPCB vide letter dated 18.12.2004 (annexure A5, p/75 of paper book). During the period company run, it generated chromium waste which was kept in the factory premises in an RCC proofed dump site. Ordinarily, State of UP or UPPCB used to set up Common Treatment Plant/Common Secured Land Fill (hereinafter referred to as 'CTP/CSLF') for the benefit of MSME sector. Such plants require a lot of capital expenditure running into many crores of Rupees. However, no such plant was set up by State of UP or UPPCB in the area in which appellant's unit was running. In 2001, appellant and some other units at Kanpur Dehat, Kanpur, Unnao and Fatehpur Districts constituted a society called Kanpur Pradooshan Niyantran Samiti (hereinafter referred to as 'KPNS'), registered under Society Registration Act, 1860 (hereinafter referred to as 'SR Act 1860'). One of the main purposes and objectives of the society i.e., KPNS was to develop a common facility for treatment, storage and disposal of hazardous waste generated by the units in the areas where units were functioning. Recognizing the efforts made by industries, UPPCB executed a lease deed dated 11.03.2003 in favour of KPNS allotting 3 hectares of land in plot no. 672, (total area 10 hectares) at village Kumbhi, Akbarpur-Sikendara Road, District Kanpur Dehat. The period of lease was five years. Lease deed stated that UPPCB with the assistance of District Administration of Kanpur Dehat has acquired 10.5 hectares of land at village Kumbhi for a common facility to ensure safe treatment, storage and disposal of waste by the industries under Hazardous Waste (Management and Handling) Rules, 1989 (hereinafter referred to as 'HWMH Rules 1989'); KPNS was formed by industries situated at Kanpur Dehat and Kanpur Nagar as a registered society; KPNS wanted to take over acquired land to develop a common facility for treatment, storage and disposal of hazardous waste generated by the industries of District Kanpur Dehat and Kanpur Nagar; accordingly, UPPCB was inclined to hand over possession of 3 hectares of land on lease to KPNS for developing a common facility for treatment storage and disposal of hazardous waste generated by the industries of District Kanpur Dehat and Kanpur Nagar subject to the condition that Common Hazardous Waste Disposal Facility (hereinafter referred to as 'CHWDF') shall be constructed and completed on the lease land by lessee i.e., KPNS within six months from the date of lease and if such development is not made and completed within six months, the lease of land in favour of lessee can be cancelled.

7. Appellant and various industrial units made contribution for development and construction of CHWDF. KPNS proceeded to construct the said facility and completed work in 2005. Intimation of completion of CHWDF was given to UPPCB by KPNS vide letter dated 30.09.2005 and it sought permission from UPPCB to start functioning of the said facility. Appellant closed commercial production of the factory in 2005 under the directions of UPPCB communicated vide letter dated 25.11.2005, a copy whereof is annexure A8, p/96 of the paper book. The letter shows that closure order was issued by Head Office of UPPCB on 06.10.2005 pursuant whereto appellant's unit was sealed on 10.11.2005 but the seal got damaged, therefore, the unit was re-sealed on 25.11.2005 and appellant was directed to keep the seal safe and not proceed for commercial operation.

8. This Tribunal was ceased of a matter pertaining to pollution of Ganga River. In fact, the issue of pollution of River Ganga was under consideration before Supreme Court in Writ Petition no. 3727/1985, M.C. Mehta vs. Union of India & Others. After monitoring for about 30 years, the writ petition was transferred to this Tribunal vide Supreme Court's order dated 29.10.2014 and 24.01.2017. Tribunal registered transferred writ petition as OA No. 200/2014, M.C. Mehta vs, Union of India and others and dealt with the matter of pollution caused on account of illegal discharge of untreated sewage and industrial effluent either directly or otherwise into river Ganga and its tributaries and connected drains besides issues of dumping of solid waste, bio-medical waste, hazardous waste, plastic waste, muck and other waste, illegal sand mining, illegal encroachment on flood plains, absence of steps for conservation of ground water, re-use of treated water and restoration of water bodies and maintenance of e-flow.

9. Tribunal passed an order on 10.12.2015 in OA No. 200/2014 (supra) dividing areas covered by river Ganga into different phases and segments. Order dated 10.12.2015 was passed dealing with Phase-I - Segment A, Gaumukh to Haridwar.

10. Another order dated 13.07.2017 was passed dealing with Phase-I - Segment B: Haridwar to Kanpur, Phase-II: Kanpur to Uttar Pradesh Border, Phase-III: UP Border to Jharkhand Border (via Bihar), and Phase-IV: Jharkhand Border to Bay of Bengal (West Bengal).

11. While considering the progress of compliance of orders of this Tribunal, vide order dated 19.07.2018 with regard to Phase-I - Segment A and order dated 28.07.2018 with regard to Phase-I - Segment B, Central Pollution Control Board/State PCBs were required to display the result of water samples at various locations and at least at one place within 100 kms, showing whether water was fit or not fit for consumption or for bathing. Monitoring Committee was constituted headed by a former Judge of Uttarakhand High Court for Phase-I Segment A and Allahabad High Court for Phase-I Segment B to take stock of the actions taken with clear measurable indicators of progress and success and to oversee the action plans. The actions were required to cover interception and diversion of drains carrying sewage to Sewage Treatment Plants (hereinafter referred to as 'STP'), laying of sewerage network, utilization of treated sewage, compliance of norms by industries in the catchment areas, ground water regulation, flood plain regulation, rain water harvesting systems, good irrigation practices and filing list of industries which have the potential for pollution and creation of bio-diversity parks.

12. Further, order dated 29.11.2018 dealt with the progress in Segment A and B of Phase-I on STPs, Common Effluent Treatment Plants (hereinafter referred to as 'CETPs'), tapping of drains, compliance of Solid Waste Management Rules, 2016, setting up of bio-digesters, sewerage network, improvement in water quality, unregulated ground water extraction, e-flow, public involvement, decentralized waste processing facility close to the source of generation of waste, protection of floodplains and illegal mining.

13. Again, on 11.03.2019, deficient working of CETPs at Jajmau, Banthar and Unnao, was considered and directions were issued to consider closure of non-compliant units to improve the water quality.

14. Vide order dated 14.05.2019, this Tribunal considered report dated 09.05.2019 of Justice U.C. Dhyani (Former judge, Uttarakhand High Court) with regard to Segment A of Phase-I inter-alia pointing out non-compliance in respect of STPs. Tribunal directed remedial action including recovery of environmental compensation in view of repeated failures to comply with the directions issued by Supreme Court and this Tribunal for the last 34 years. National Mission for Clean Ganga (hereinafter referred to as 'NMCG') was to ensure compliance with regard to prevention and removal of encroachments, maintenance of e-flow, afforestation and setting up of bio-diversity parks, ground water regulation, sand mining regulation, stopping any camping on the banks of river Ganga or its tributaries.

15. With regard to Segment B of Phase-I, after noting that industries were discharging untreated effluents in river Ganga, Tribunal directed closure of all activities of the members of the dysfunctional CETPs until CETPs are compliant. It was further directed that only treated effluents may be discharged into River Ganga and its tributaries. Further direction was that coercive measures be taken against the officers of UPPCB and NMCG, colluding in permitting continued operations of polluting activities. Direction was also given for remediation of chromium dumps at Kanpur Dehat (Khan Chandpur and Rakhi Mandi) in Uttar Pradesh and ensuring of proper e-flow from the Narora Barrage.

16. With regard to Phase-II to IV, NMCG, in co-ordination with State Governments of Uttarakhand, Bihar, Jharkhand, West Bengal and Uttar Pradesh, was to file action plans with firm timelines on the subjects of interception and diversion of drains, utilization of treated sewage, compliances by industries in the catchment area, ground water regulation, flood plain regulation, rain water harvesting and good irrigation practices for water conservation in the light of Tribunal's order dated 13.07.2017. NMCG was to give information about status of projects planned and executed between Kanpur to Ganga Sagar. Status of water quality in Uttarakhand, Bihar, Jharkhand, West Bengal and Uttar Pradesh was to be displayed on their respective websites. CPCB was also to indicate such status on its website. Flood plains were to be demarcated, encroachments removed, bio-diversity parks set up, afforestation works undertaken, guidelines for bio-diversity parks prepared by CPCB and Ministry of Environment, Forest and Climate Change, flood plains were to be handed over to State Forest Departments.

17. Vide order dated 29.05.2019, Tribunal directed that Ganga pollution be monitored directly by Chief Secretaries in view of such monitoring having already been directed in respect of 351 polluted river stretches in different States by Chief Secretaries vide order dated 16.01.2019 passed in OA No. 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016. No construction zone distance on flood plains was to be measured from Highest Flood Line (hereinafter referred to as 'HFL') in the last 25 years and flood plains were to be identified on longitude and latitude. Responsibility for plantations and administrative control of areas beyond HFL were to be handed over to the Forest Departments. UPPCB was directed to prohibit industrial polluting activities and to revise compensation regime so as to recover the actual cost of restoration. State of UP was to provide funds for remediation of chromium dumps. E-flow was to be maintained as earlier directed in the order dated 29.11.2018. Encroachments were to be removed. Tapping of remaining drains and prevention of pollution was to be expeditiously ensured. After noting the status of progress on sewage infrastructure projects in Ganga Basin, Chief Secretaries of Bihar, Jharkhand and West Bengal were directed to effectively monitor the progress. Timelines were directed to be reviewed and prepared. NMCG was to undertake progress on reduction of pollution load and improvement of water quality. Further road map, including identification of accountable persons and taking actions for the lapses was to be prepared.

18. Vide order dated 22.07.2019, prayer for extension of timelines for up-gradation of CETPs at Unnao and Banthar was rejected as the stipulated period of two years vide order dated 13.07.2017 had already expired.

19. Thereafter, order dated 22.08.2019 was passed summarizing precise issues which needed immediate focus in OA No. 200/2014 (supra) which were formulated as under:

"i) Prevention of discharge of untreated industrial waste and sewage in the River Ganga and its tributaries, including tapping of drains and bio-remediation, as applicable;

ii) Installation of STPs, CETPs, and making existing CETPs functional (including at Jajmau, Banthar and Unnao) and enhance the capacities, so assessed and monitoring of the standards before discharge of water into Ganga River;

iii) Installation of Continuous Emission Monitoring System (CEMS) at appropriate locations and Online Monitoring System (OMS);

iv) Usage of treated waste water, of sludge manure and setting up of bio-digesters and septage management

v) Preventing dumping of waste and scientific waste management including bio-medical wastes, plastic wastes and decentralizing waste processing, including waste generated from hotels, ashrams, etc.;

vi) Floodplains identification and zone demarcation with restrictions against any development/construction/encroachment;

vii) Maintenance of E-flow as notified by Ministry of water Resources including releasing water by Hydel projects and barrages; and

viii) Other directions including displaying water quality data in public domain and at prominent places, development of bio-diversity parks, prohibition of river bed mining, remediation of chromium dumpsites in Uttar Pradesh, collection of compensation from violators and involvement of society including religious, charitable, social and educational institutions for preventing and remedying pollution of River Ganga."

20. Tribunal passed a detailed order on the above issues in respect of State of Uttarakhand and State of UP but we are confining ourselves with the observations made in respect of chromium waste at Kanpur, contained in para 24 and 25, and are reproduced as under:

"24. Chromium dump has been stored since 1976 which is required to be shifted to TSDF. The State of Uttar Pradesh may undertake health survey of the area and ensure shifting of the Chromium dumps within three months failing which it would be liable to pay environmental compensation of Rs. 10 lakhs per month to CPCB besides furnishing performance guarantee of Rs. 1 Crore to CPCB.

25. Let the remedial measures be taken by the SPCB for effective monitoring by installing CCTV cameras or undertaking surveillance in any other manner with the help of local police."

21. The Committee headed by Justice Arun Tandon (Former Judge of Allahabad High Court) submitted reports dated 25.09.2019 and 26.09.2019. The said reports were considered by Tribunal vide order dated 27.09.2019 and the same were registered separately as OA No. 985/2019, In Re: Water Pollution by Tanneries at Jajmau, Kanpur, Uttar Pradesh and OA No. 986/2019, In Re: Water Pollution at Rania, Kanpur Dehat & Rakhi Mandi, Kanpur Nagar, Uttar Pradesh. The report with regard to water pollution at Rania, Kanpur Dehat and Rakhi Mandi, Kanpur Nagar submitted in OA No. 986/2019 (supra) was considered by Tribunal and the observations made in para 4 to 8 reads as under:

"4. We first take up the report filed in O.A No. 986/2019 relating to Kanpur Nagar, Uttar Pradesh around the area of Chromium dump at Rania, Kanpur Dehat and Rakhi Mandi, Kanpur Nagar Water Pollution at Rania, Kanpur Dehat and Rakhi Mandi, Kanpur. As already noted, the said dump of hazardous Waste has been in existence since 1976 and inspite of repeated orders, the authorities have failed to ensure its shifting. This gross failure of responsibility by the State of U.P. has resulted in situation depicted in the report which we will presently refer.

5. Justice Arun Tandon along with the representatives of the NMCG, CPCB, UPPCB, UP Jal Nigam and the local residents of the area visited the sites and noticed the status of the Rania and Rakhi Mandi, Kanpur as follows:

"Status at Rania

The Committee found that huge dump of chromium was stacked about 500 meter away on the right side of the Kanpur-Jhansi Highway in village Khan chandpur falling in district Kanpur Dehat. Photographs of the dump were taken and are enclosed along with the report. The Committee was informed that the land over which the chromium dump is lying is either private land or the land belonging to Gram Sabha. The rain water collected near the dump was green in colour.

The Committee was informed by the residents of the area that the water which comes out from hand pump/bore well was coloured. It was unfit for drinking. The Committee accordingly collected samples from various places within the radius of around 150 meter both towards the highway from the dump as well as from the opposite direction. At all places the Committee found that colour of the water, sample thereof has been taken was greenish. Even the water from the bore well situate within a factory and was more than 150 meter deep had the same colour.

The Committee was taken across the highway by the local residents and the Committee could notice that the water from the hand pumps which was being used by the inhabitants of the locality was green in colour. Photographs of the same have been taken, samples have been drawn for analysis. Water from the hand pump at roadside dhaba was also provided to the Committee which was more green in colour. The sample of the water so provided along with analysis report of the same as carried out by CPCB is filed before the Hon'ble National Green Tribunal for its perusal.

The residents of the area informed that there was no source of fresh water except the underground water. It was stated that earlier a tube well was constructed on the left side of the highway but had to be closed as the underground water received from the tube well was green in colour.

The total population of village Khanchandpur is reported to be around 1500. The Committee also specifically noted that the surface area of the land of village Khanchandpur on both sides of the highway was more or less similar to the surface area of the dump of the chromium. The underground water which is used and which lies collected in small puddles is used for drinking by animals.

Those who have resources purchase drinking water in 20/50 litre cans everyday. The residents of the area made serious complaints. They stated that the drinking water or underground in the village was contaminated due to leachet from the chromium dump. An old man specifically showed the physical infirmity in his leg to the Committee. He has been photographed. Copy whereof is filed along with the report.

The presence of chromium in the underground water in village Khanchandpur many times the permissible limit is established from the analysis report of CPCB of the samples drawn. Use of such quality of water by human being and animals is dangerous not only to the existing residents but also for the future generations to come. Remedial steps are required to be taken to ensure safe drinking water for the residents of the area as well as for animals.

The Committee was provided a copy of the letter of the State Government dated 02.08.2019 requiring the compliance of the order of the Hon. National Green Tribunal dated 13.07.2017 addressed to the Chief Executing Officer, U.P.S.I.D.A. with reference to DPR which was for removal of chromium dump at Rania. Copy of the said letter is enclosed along with this report.

On behalf of the U.P.S.I.D.A. vide letter dated 20.08.2019 serious objections with regard to the implementation of the proposed temporary measures/remedial measures in respect of the chromium dump at Raniaas suggested in the DPR of M/s. ERM India Pvt. Ltd., were raised. The Committee was also shown a copy of the temporary remedial measure as suggested by M/s. ERM India Pvt. Ltd., referred to as addendum to DPR letter dated 20.08.2019 along with addendum are enclosed along with the report.

It is surprising that in the temporary measures so suggested there is no mention of the measures to be taken for improving the quality of the underground water and/or the measures required to be taken for ensuring safe drinking water for human beings and animals of the concerned village as well as of the surrounding area of the village concerned.

In the opinion of the Committee the situation at Rania is alarming and needs immediate intervention of Hon. National Green Tribunal.

Status at Rakhi Mandia

Rakhi Mandi, Kanpur Nagar the Committee found that the water received from a bore well more than 150 feet deep, constructed inside a petrol pump was green in colour. The Committee was informed that the water received from hand pumps which were earlier used in the area was not portable and was green in colour. All such hand pumps have been closed.

Samples of the underground water have been drawn. Analysis report is awaited. The Committee has no hesitation to record that the water at Rakhi Mandia, Kanpur Nagar is also completely unfit for drinking purposes for human being and animals."

6. The following measures have been suggested:

"(a) All hand pumps along with tubewells/borewells installed in the area be sealed and there should be complete prohibition on extraction of underground water for drinking purposes both at village Khanchandpur, Kanpur Dehatand Rakhi Mandi, Kanpur Dehat.

(b) State Government through its Chief Secretary must be directed to ensure supply of drinking water through tankers on day to day basis to the residents of the village Khanchandpur and also to surrounding areas till measures as below are not taken.

(c) Drinking water Sintex tanks be installed in appropriate number at appropriate places in village Khanchandpur for providing potable water within a period of 15 days for the use of the residents of the area. These tanks must be connected to a supply pipe line from a source of potable water within another 7 days and till then the tanks be filled everyday with drinking water through tankers.

(d) The materials which had been purchased for the purpose of Maha Kumbh Melaat Allahabad can be safely used for the above.

(e) Under the Addendum of DPR has to be made available for the purpose transshipment of the dump of the chromium by the State Government."

7. A bottle of water of sample collected on 17/18.09.2019 from Khan Chandpur handpump duly signed by Justice Arun Tandon has also been received which is handed over to Sh. Rajkumar, Advocate for the CPCB. The CPCB may have the same analyzed and furnish its report to this Tribunal with all relevant details before the next date.

8. The above report is self-speaking and paints a grim picture of failure of the authorities in taking remedial measures, forcing the inhabitants to drink polluted water which is a serious hazard to the health. Needless to say that access to potable drinking water is a guaranteed fundamental right and inalienable duty of the State. The State has clearly failed in doing so in the present case. As suggested in the report, it is necessary to require remedial measures to be taken especially with regard to supply of drinking water to the affected inhabitants in the area."

22. The observations in para 9 to 12 in the order dated 27.09.2019 relate to second report submitted in OA No. 985/2019 (supra) with regard to water pollution by tanneries at Jajmau, Kanpur. Hence, we are omitting the same at this stage. The ultimate directions issued by Tribunal, in para 13 of the order, read as under:

"i. The Chief Secretary, UP, may forthwith ensure steps for supply of drinking water to the residents in the affected area, apart from taking other remedial measures in the light of report of Justice Tandon in respect of Rania, Kanpur Dehat and Rakhi Mandi, Kanpur Nagar, around the area of Chromium dump and earlier orders of this Tribunal.

ii. The Chief Secretary, UP, may ensure that untreated sewage is not discharged in River Ganga and pending a permanent solution, at least temporary arrangement by way of phytoremediation, bio-remediation or any other technology is done to disinfect/treat water before the same is discharged into the River Ganga.

iii. The Chief Secretary, UP, may initiate necessary action against the Principal Secretary, Urban Development, UP, UP Jal Nigam, State PCB for their illegal action in permitting discharge of untreated sewage and effluents directly into River Ganga.

iv. A compliance report may be filed in the matter within one month by email at judicial-ngt@gov.in.

v. The CPCB may furnish its report to this Tribunal with all relevant details before the next date."

23. UPPCB in furtherance of the above directions identified six industries responsible for dumping of waste at village Khan Chandpur, Rania, Kanpur Dehat which included appellant also. Total cost of remediation of the entire quantity of chromium waste lying at village Khan Chandpur was assessed as Rs. 280.01 Crores. Therefore, UPPCB sought to recover the said cost as environmental compensation from the identified six industries. A show cause notice dated 24.10.2019 was issued to appellant proposing to impose environmental compensation of Rs. 46,67,80,837.50/-. The relevant extract of the order reads as under:

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".... vii) Other directions including displaying water quality data in public domain and at prominent places, development of bio-diversity parks, prohibition of river bed mining, remediation of chromium dumpsites in Uttar Pradesh, collection of compensation from violators and involvement of society including religious, charitable, social and educational institutions for preventing and remedying pollution of River Ganga..... "

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"It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The committee directed CPCB to issue notice for levy of Environmental Compensation to the industries which have caused and are causing damage to the environment."

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Environmental Compensation (EC) = Q x ERF x R

Where

Q is noticed or observed quantity (in tonne) of hazardous or other wastes which have not been managed in compliance with various provisions of thes/Rules/Guidelines/conditions of the authorisation/directions issued by CPCB/SPCB/PCC/MoEF&CC (barring procedural violations which have not caused environmental damage)

ERF = Environmental Risk Factor which is a number (as given in Table 1 below) denoting the increasing degree of risk to the environmental and human health due to the scenarios as given in the table:

S. No.	Violation	ERF
		For Hazardous Waste	For Other Waste*
1.	When hazardous and other wastes is disposed at unauthorised place or handed over or sold to unauthorised party	1.5	0.3
2.	When treatment has not been imparted, as required, but only partial treatment has been given (TSDF/Actual user)	1.0	0.2
3.	When product (derived from hazardous or other waste is not confirming to prescribed specification or is specified for restricted used but sold in open market against (in case of actual user)	1.0	0.2
4.	Wastes found stored beyond the stipulated period (refer Rule 8 of the HOWM Rules, 2008)	0.1	0.05

R = Environmental Compensation factor, which may be taken as Rs. 30,000.

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English translation by Tribunal-

"That the relevant portion of the Order dated 07.08.2019 passed in O.A. No. 200/2014 passed by the Hon'ble N.G.T. in the matter of M.C. Mehta Versus Union of India and others, is as follows:

".... vii) Other directions including displaying water quality data in public domain and at prominent places, development of bio-diversity parks, prohibition of river bed mining, remediation of chromium dumpsites in Uttar Pradesh, collection of compensation from violators and involvement of society including religious, charitable, social and educational institutions for preventing and remedying pollution of River Ganga..... "

That the following directions were issued during the Review Meeting in compliance of order dated 08.08.2019 passed in O.A. No. 200/2014 by the Monitoring Committee lead by Hon'ble Justice Mr. Arun Tandon:-

"It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The committee directed CPCB to issue notice for levy of Environmental Compensation to the industries which have caused and are causing damage to the environment."

That in compliance of Order dated 27.09.2019 passed in O.A. No. 985/2019 and O.A. No. 986/2019 by the Hon'ble National Green Tribunal, New Delhi, the directions were issued by the Review Committee in its meeting held on 17.10.2019 at state level that the Industries who have illegally dumped their Chromium Waste in Umran, Prasidhpur and Village Khanchanderpur, District Kanpur Dehat, on them the fine for environmental compensation loss shall be imposed and its recovery shall be made from them on the basis of Polluter Pays Principle.

That in compliance of the aforesaid directions, in accordance with the report received from the Regional Office, Kanpur Dehat vide its Letter No. 1515/R-130/2019 dated 22.10.2019, the Ground Water have been polluted in Village Kanchander Pur, Umran, which falls under Rania, Kanpur Dehat and Village Arya Nangar, Rajender Nagar Chauraha and Village Chirora under Fatehpur Roshnai due to illegal dumping of Hexavalent Chromium. M/s. Waris Chemicals Pvt. Ltd., Khanchanderpur Rania, Kanpur Dehat, whose production capacity was 4 MTD which have done illegal storage/dumping of Hazardous Waste containing Hexavalent Chromium during the period of their production in a unsecured manner. That out of total 62225 MT illegally stored Hazardous Waste, the contribution of your factory is 16.67 percent.

That the Central Pollution Control Board, Delhi have issued the guidelines for calculation of environmental compensation in accordance with the provisions of the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016, wherein the following provisions have been laid down:-

Environmental Compensation (EC) = Q x ERF x R

Where

Q is noticed or observed quantity (in tonne) of hazardous or other wastes which have not been managed in compliance with various provisions of thes/Rules/Guidelines/conditions of the authorisation/directions issued by CPCB/SPCB/PCC/MoEF&CC (barring procedural violations which have not caused environmental damage)

ERF = Environmental Risk Factor which is a number (as given in Table 1 below) denoting the increasing degree of risk to the environmental and human health due to the scenarios as given in the table:-

S. No.	Violation	ERF
		For Hazardous Waste	For Other Waste*
1.	When hazardous and other wastes is disposed at unauthorised place or handed over or sold to unauthorised party	1.5	0.3
2.	When treatment has not been imparted, as required, but only partial treatment has been given (TSDF/Actual user)	1.0	0.2
3.	When product (derived from hazardous or other waste is not confirming to prescribed specification or is specified for restricted used but sold in open market against (in case of actual user)	1.0	0.2
4.	Wastes found stored beyond the stipulated period (refer Rule 8 of the HOWM Rules, 2008)	0.1	0.05

R = Environmental Compensation factor, which may be taken as Rs. 30,000.

That after doing calculation in the abovementioned manner the total environmental loss of Rs. 46,67,80,837.50/- has been calculated against your factory.

Therefore, in view of the abovementioned circumstances, you are hereby directed to clarify the above situation within 15 days and submit your reply before the Regional Office and Board Headquarters, Lucknow. Kindly note, in the event of not receiving any reply or satisfactory reply in this regard within a period of 15 days, then the fine of Rs. 46,67,80,837.50/- will be imposed as environmental compensation on the basis of Polluter Pays Principle against the factory and the employees of the factory for dumping the waste produced during the operation of factory at the abovementioned place."

24. Appellant did not submit any reply to the notice dated 24.10.2019. It is stated that representatives of some units accompanied by appellant's representatives met Shri T.U. Khan, Chief Environment Officer, UPPCB on 01.11.2019 who gave an impression that matter was still under consideration and order would be passed after giving hearing to person concerned. Since no reply was filed by appellant, RO UPPCB proceeded to finalise the matter and passed final order dated 19.11.2019 imposing environmental compensation of Rs. 46,67,80,837.50. Appellant was directed to pay the same within 15 days failing which steps would be taken to recover the said amount as arrears of land revenue. The substantial part of the order is reproduction of the contents of the show cause notice dated 24.10.2019 and the relevant extract distinct from the show cause notice as contained in the final order dated 19.11.2019 is reproduced as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"On the basis of the calculation done as above, prior to calculation of environmental loss of Rs. 46,67,80,837.50/- (Rs. Forty six crores sixty seven lakhs eighty thousand eight hundred thirty seven and paise fifty only), vide Board's letter dated 24.10.2019, a show cause notice was issued, in respect of which reply of the industry is not received within the prescribed time.

Therefore, under the aforesaid circumstances, in compliance of order dated 27.09.2019 passed in OA No. 985/2019 and OA No. 986/2019 by Hon'ble National Green Tribunal, New Delhi and as per the recommendations of Joint Committee, the violations committed by the industry will have a negative impact on the environment, A total of Rs. 46,67,80,837.50 (Rs. Forty six crores sixty seven lacs eighty thousand eight hundred thirty seven and paise fifty only) is imposed on M/s. Waris Chemical Pvt. Ltd. Khanchandrapur, Rania, Kanpur Dehat as environmental compensation for causing adverse effect on the environment and it is directed that environmental compensation amount shall be deposited in the UP Pollution Control Board's Union Bank of India, Vibhav Khand, Gomti Nagar, Lucknow to the bank's account number-701502010002104 IFS code-UBIN0570150 within 15 days and ensure to submit the evidence of depositing the amount in the Regional Office and Head Office of the Board.

Kindly note that environmental compensation, if not received, within stipulated time period, the recovery of the said amount will be recovered as land-revenue having its complete liability on the industry and the managers operating the industry."

(English Translation by Tribunal)

25. Thereafter, appellant preferred a protest letter dated 09.12.2019 addressed to Member Secretary, UPPCB and RO UPPCB. It is stated that dumping of chromium was between 1976 to 2019 but the entire responsibility has been settled upon six industries while those industries were not working in the said entire period; no notice for determination of chromium waste was ever served upon the appellant and it was not shown as to how the quantum of chromium waste was determined; no assessment of chromium waste dumped by appellant actually on the site was made and, therefore, the final order dated 19.11.2019 is in violation of principles of natural justice and without any effort or exercise of adjudication and determination of true facts. It is further said that after receiving permission from UPPCB on 05.09.1994 (CTE), appellant company commenced its production on 04.02.1995 and stopped the same on 25.11.2005 pursuant to closure order of UPPCB. During this period also, there were several intermittent durations when appellant company did not function. The total capacity of appellant's factory was 50 MT/month and average waste discharge from the factory unit was about 12.50 MT/month. The factory had in-house pucca dump for the purpose of storing its waste which contained only 0.1%-0.5% chromium. Once in-house pucca dump situated in factory premises was full, company with other chromium based factories approached UPPCB for arranging the accumulated waste disposal and to provide alternate site for dumping of the waste produce. There were about 24 chromium based factories operating between 1976 till date in the vicinity of appellant's unit and list of the said units is as under:

i.) Cerulean Chemicals Pvt. Ltd., Rania, Kanpur Dehat

ii.) Waris Chemicals Pvt. Ltd., Rania, Kanpur Dehat

iii.) Hielger Chemicals Pvt. Ltd., Rania, Kanpur Dehat

iv.) Rukmini Chemicals Pvt. Ltd., Rania, Kanpur Dehat

v.) Chandni Chemicals Pvt. Ltd., Rania, Kanpur Dehat

vi.) Amelia Textiles & Chemicals Pvt. Ltd., Rania, Kanpur Dehat

vii.) Unichem (India), Chaubepur, Kanpur

viii.) Khanna Vivek Chemicals Pvt. Ltd., Panki, Kanpur

ix.) Kalina Chemicals Pvt. Ltd., Chaubepur, Kanpur

x.) Supreme Chemicals, Unnao

xi.) Wood Burn Chemicals Ltd., Unnao

xii.) Indian Chemical Corp., Jajmau, Kanpur

xiii.) Kanpur Chemcial Works, Anwarganj, Kanpur

xiv.) Prahlad Rai Chemicals, Near Juhi, Rakhi Mandi, Kanpur

xv.) Dinkar Chemicals Pvt. Ltd., Fazal Ganj, Kanpur

xvi.) Solar Chemicals Pvt. Ltd., Fazal Ganj, Kanpur

xvii.) Madhuchandra Techno Chem Pvt. Ltd., Chaudagra, Fatehpur

xviii.) KU Chemicals, Fatehpur Roshnai, Rania, Kanpur Dehat

xix.) Bharat Chemicals, Akrampur, Unnao

xx.) RC Chemicals, Akrampur, Unnao

xxi.) Shimco Chemicals Pvt. Ltd., Unnao

xxii.) Prime Chemicals, Unnao

xxiii.) SC Manufacturers, Unnao

26. The above list is actually of 23 industries out of which 7 are in KANPUR DEHAT. Rest are in other cities, namely, 8 in KANPUR, 7 in UNNAO and 1 in FATEHPUR. Distance of Fatehpur to Rania, Kanpur Dehat is more than 100 kms.

27. UPPCB got 10.5 hectares of land for developing Common Secured Land Fill Facility (hereinafter referred to as 'CSLF') in year 1994 but it did not develop the same and though KPNS constructed the same after having 3 hectares of land on lease in 2003 from UPPCB but it was not allowed to function since no permission was granted for the reasons best known to UPPCB. The CSLF constructed by KPNS was taken over by UPPCB and handed over to M/s. Bharat Oil and Waste Management and Ramky Inviro-engineers Ltd. The dump containing chromium lying on the questioned site was never shifted to CHWDF/CSLF by UPPCB or M/s. Bharat Oil and Waste Management and Ramky Inviro-engineers Ltd. nor they permitted KPNS to shift dumped waste to constructed landfill. The ill-effects if any, caused due to percolation and seepage of chromium from the aforesaid dump is fully on account of inaction on the part of UPPCB. Appellant has also come to know that there was an oil refinery namely Laxmi Oil Pvt. Ltd. near village which was discharging effluent underground by reverse boring and thus contaminating water with oil, waste and other chemicals but no action was taken against the said unit. Member Secretary, UPPCB wrote a letter dated 01.04.2009 to Member Secretary, Central Pollution Control Board (hereinafter referred to as 'CPCB') informing that as per IITR report, total waste lying at the questioned site was around 45000 MT but, in the order, dated 19.11.2019, UPPCB proceeded by treating quantity of dump as 62225 MT without giving any reason as to how the quantity of dump has increased by more than 17000 MT particularly, when all the six industries against whom action was taken, were closed in 2005. At the best, appellant and other five companies can be held responsible for the period they operated and not in respect of entire dump lying on the questioned site for the last 42 years since 1976. Singling out six industries for the purpose of computation of environmental compensation is arbitrary. Total assets of the company as per returns are to the tune of Rs. 18,49,353.91, hence, company is not in a financial position to honor demand of the notice and ex-facie the demand is malicious and quantified without adopting any procedure. Copy of report was never communicated to appellant and appellant was not party to the matter pending before Tribunal, hence entire proceedings are in violation of principles of natural justice.

28. No action was taken on the appellant's protest letter and in the meantime, a recovery citation dated 08.01.2020 (p/149 of paper book) was issued by the office of Tehsildar, Rania under the provisions of UP Revenue Code, 2006 and rules framed thereunder for recovery of amount of compensation of Rs. 46,67,80,837/- as arrears of land revenue. In the circumstances, appellant filed OA No. 21/2020, Waris Chemicals Pvt. Ltd. vs. UPPCB & Others before this Tribunal which was disposed of vide order dated 28.01.2020 and the said order reads as under:

"Grievance in these applications is against orders of the Uttar Pradesh State PCB assessing compensation on 'Polluter Pays' principle for violation of law. Though these applications under Section 14 of the NGT Act, 2010 are not maintainable, we have treated the same to be appeal under Section 16 of the NGT Act, 2010.

According to the applicants, their units were not in operation at the relevant time and did not dump the hazardous waste for which they are held liable. This fact could not be pointed out as opportunity of hearing was not given.

Without expressing any opinion on merits, we direct that the impugned orders may be treated as a proposal with reference to which the applicants may furnish their response to the UP State PCB within two weeks. The UP State PCB may consider the objections of the applicants and pass an appropriate order within four weeks thereafter dealing with the matter on merits, in accordance with law.

The application is disposed of."

29. Pursuant to order dated 28.01.2020 passed in OA No. 21/2020 (supra), appellant submitted a representation dated 10.02.2020 before Member Secretary, UPPCB. It was stated in the said representation that appellant was not a party in OAs No. 985-986/2019 (supra) and had no notice of the said proceedings; copy of the report placed before Tribunal was not served upon the appellant, hence, entire proceedings are in violation of principles of natural justice, appellant's company commenced production on 04.02.1995 and ceased operation on 25.11.2005, hence, it was unreasonable to hold it liable for causing dumping of chromium waste since 1976 and thereby causing pollution; orders of Tribunal should not be read as determinative of any liability against appellant; non-supply of adverse material prejudicial to a person is in violation of natural justice and hence the proceedings against appellant are also vitiated on account of the said legal flaw; UPPCB has selectively targeted appellant and five other units though about 24 units producing chromium based products run around Kanpur Dehat and Kanpur Nagar between 1976 and onwards; increase of total quantity of waste from 45000 MT to 62225 MT, has not been explained and this increase is patently illegal and whimsical; cost of remediation taken as environmental compensation of Rs. 280.01 Crores is also illegally assessed; in any cases, it covers the entire period of 1976 and onwards, hence, this amount could not have been pressed upon the appellant and five other units; demand raised is also barred by limitation since after 15 years, such action cannot be taken against appellant as it has closed its operation since 2005; NGT itself could not have issued directions for compensation after expiry of period of limitation prescribed under Section 15(3) of NGT Act, 2010; hence, what NGT could not have done, UPPCB also could not have done; appellant's production capacity was never fully utilized; appellant stored its chromium waste in RCC proofed dump within the factory premises; there were several period of intermittent stoppage of functioning between 1995 to 2005, hence, assessment of quantity of waste against appellant is erroneous and faulty; the calculation formula was laid down by CPCB under Hazardous and other Waste (Management and Transboundary Movement) Rules, 2016 (hereinafter referred to as HOWMTM Rules, 2016') which are prospective and not retrospective and cannot be applied to appellant's unit which was closed in 2005; the principles of 'polluter pays' should be applied to the industries which were in existence in 1976 and not the appellant; liability has been estimated by UPPCB arbitrarily without reference to any actual data but speculative and arbitrary/misleading data such as production capacity and deemed production that too after several years; company has closed its production and responsibility lie upon the said authorities in failing to adequately supervise disposal of waste for several years, hence, recovery of compensation from appellant is time barred, and without applying mind to the objections raised by appellant, respondent has passed impugned order dated 28.05.2020.

30. Challenging the above order, present appeal has been filed accompanied by IA No. 212/2020 whereby appellant has sought an interim relief for stay of the order dated 28.05.2020.

Tribunal's Order dated 10.07.2020:

31. The appeal was taken up by Tribunal for admission/hearing on 10.07.2020 and after noticing the contentions advanced in support of appeal, issued notice to UPPCB to submit its response.

Reply dated 02.12.2020 filed by UPPCB

32. UPPCB has referred to the background facts stating that Monitoring Committee under Chairmanship of Hon'ble Justice Arun Tandon, former Judge was constituted to ensure compliance of Tribunal's order passed in OA No. 200/2014 (supra). Committee in its meeting held on 08.08.2019 issued directions which are stated in reply as under:

"It was directed that progress of removal of chromium from dump site at Rania be reported in the next meeting. The Committee directed CPCB to issue notice for levy of Environmental compensation to the industries which have caused and are causing damage to the environment."

33. Two reports dated 25.09.2019 and 26.09.2019 were submitted by the Committee which were considered by Tribunal on 27.09.2019 while considering OA No. 985-986 of 2019 (supra) and after considering the reports, Tribunal issued certain directions which we have already reproduced hereinabove.

34. Pursuant to order dated 27.09.2019, UPPCB examined the matter and issued show cause notice dated 24.10.2019 to appellant industry requiring it to show cause as to why environmental compensation of Rs. 46,67,80,837.50 be not imposed against it for illegal dumping of chromium waste in village Khan Chandpur, Rania, Kanpur Dehat. Fifteen days' time was allowed to submit its reply but no reply was submitted hence on 19.11.2019, final order was passed imposing environmental compensation of Rs. 46,67,80,837.50. Since industry failed to deposit the said amount, recovery certificate dated 18.12.2019 was issued for recovering the amount of environmental compensation as arrears of land revenue whereupon a citation dated 08.01.2020 was issued by Tehsildar under the provisions of UP Revenue Code, 2006 and Rules framed thereunder. Thereafter, appellant industry approached this Tribunal in OA No. 21/2020 (supra), contending that no opportunity was granted before imposing environmental compensation though this was an incorrect statement since show cause notice was already issued but appellant industry failed to reply the said show cause notice. Tribunal disposed of OA vide order dated 28.01.2020.

35. UPPCB filed Review Application No. 14/2020, UPPCB vs. Waris Chemicals Pvt. Ltd., stating that appellant was given an opportunity of hearing. Thereafter, order dated 28.05.2020 was passed by RO UPPCB.

36. Later, Review Application filed by UPPCB came up for hearing on 31.07.2020 when it was disposed of as infructuous.

37. Para-wise reply given by UPPCB in para 4 of the reply is as under:

"4(i) That the contents of Para 4(i) need no reply.

4(ii) That in reply to the contents of Para 4(ii) it is submitted that consent to establish was granted to Appellant vide order dated 05.09.1994 wherein it was specifically mentioned that Appellant will not start operation without obtaining the consent under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. It will comply with the norms prescribed under Air and Water Act. It has to ensure to obtain authorization under Hazardous Waste (Management and Handling) Rule, 1989 and to comply with those Rules. It has to ensure the compliance of the provisions of Public Responsibility Insurance Act, 1991 and to prepare and get approved Disaster Management Plan from Director of Industries.

4(iii) That in reply to the contents of Para 4(iii) it is submitted that the Appellant did not obtain consent to operate under Air and Water Act nor obtained authorization under Hazardous Waste (Management and Handling) Rules, 1989. Several notices have been issued to the Appellant for compliance of the conditions of NOC and environmental law including proper disposal of hazardous waste. Besides this, Appellant was also informed to comply with the environmental norms to obtain consent and authorization under Hazardous Waste (Management and Handling) Rules, 1989 and to obtain authorization but in vain.

4(iv) & 4(v) That the contents of Paras 4(iv) and 4(v) are wrong hence denied. It is submitted that it is the obligation of the industry to treat and dispose of the hazardous waste. Common Treatment Plant and Secure landfill can be developed by the industries and for this purpose the Appellant with other units has formed a society titled as "Kanpur Pradooshan Niyantran Samiti" to which lease was granted by the Board of his land for five years. However, no plant was commissioned or completed which is admitted by Appellant in Para 4(v) Pages 21 and 22 of the Appeal as no environmental clearance was granted.

4(vi). That the contents of Para 4(vi) are wrong hence denied. There is nothing on the record that the then Member Secretary of the replying Respondent ever assured the Appellant that entire chrome waste will be lifted by Bharat Oil and Waste Management (Common Hazardous Waste Treatment and Disposal Facility).

4(vii). That in reply to the contents of Para 4(vii) it is submitted that the industry of the Appellant was closed w.e.f. 25.11.2005 due to non-compliance of Hazardous Waste (Management and Handling) Rules, 1989 and premises was sealed.

4(viii) & 4(ix) That the contents of Paras 4(viii) and 4(ix) are matter of record and nothing contrary to record is admitted.

4(x) That the contents of Para 4(x) are not correct. As stated herein above the report submitted by the monitoring committee presided over by Justice Arun Tondon submitted his report which are registered as O.A. No. 985-986 of 2019.

4(xi) That the contents of Para 4(xi) are matter of record. However, it is submitted that the chromium waste dump is because of Appellant and other basic chromium manufacturing units. Hence, show cause notice was issued by the replying Respondent as to why environmental compensation be not imposed on the Appellant for degradation of the environment caused by it.

4(xii) That the contents of Para 4(xii) are irrelevant for the purpose of present case. It is submitted that show cause notice itself was clear that the Appellant had to submit their explanation as to why environmental compensation be not imposed on it.

4(xiii) That the contents of Para 4(xiii) are wrong hence denied. It is submitted that as no reply to the show cause notice was received the replying Respondent has imposed the Environmental Compensation of Rs. 46,67,80,837.50.

4(xiv). That the contents of Para 4 (xiv) are matter of record, however, nothing contrary to record is admitted.

4(xv). That in reply to the contents of Para 4(xv) it is submitted that as per the list submitted by Appellant there are only 23 units mentioned in Annexure A-14, out of which 7 industries are shown in Kanpur Dehat, however, industry at Serial No. 19 K.U. Chemicals, Fatehpur Roshnai, Rania, Kanpur Dehat is neither in existence nor the replying Respondent has any record in respect of the said industry. Since the chromium dump has been found in Kanpur Dehat and only 6 units were operating in that area, hence action has been taken against the 6. It is submitted that 8 industries are shown in Kanpur, 7 in Unnao and 1 in Prayagraj. Out of 8 industries shown in Kanpur only 3 were basic chromium sulphate producing industries and were having proper hazardous waste disposal facilities and the rest 5 were not producing basic chromium sulphate as per the record. Out of 7 industries in Unnao only 3 are producing basic chromium sulphate and have proper hazardous waste disposal facilities. Rest 4 industries are not in existence as per the record. There is no proof of disposal of any waste by these units to Khandchandpur, Rania Kanpur Dehat. These units are 50 kilometers away from the concerned site. One unit shown in Prayagraj is 50 kilometers away and having proper waste disposal facility.

4(xvi). That in reply to the contents of Para 4(xvi) it is submitted that as no reply was filed to the show cause notice and the imposing of environmental compensation was done, further action was issued for recovery of the same.

4(xvii). That in reply to the contents of Para 4(xvii) it is submitted that the Appellant did not inform to this Hon'ble Tribunal that it has not submitted any reply to the show cause notice.

4(xviii) & 4(xix). That contents of Para 4(xviii) & 4(xix) are matter of record and nothing contrary to record is admitted.

4(xx). That in reply to the contents of Para 4(xx) it is submitted that after considering the reply submitted by Appellant order dated 28.05.2020 was passed by imposing environmental compensation.

4(xxi). That the contents of Para 4(xxi) need no reply.

It is submitted that the compensation for degradation of environment was imposed considering the production capacity of Appellant which was approximately 16.67% of entire waste liability of Rs. 280.01 Crores."

Tribunal's order dated 04.01.2021:

38. Reply filed by UPPCB was considered by Tribunal on 04.01.2021. Tribunal observed that the request for interim relief by appellant is not acceptable as no case is made out for absolute interim relief. On the question of limitation also, Tribunal observed that Section 15(3) of NGT Act, 2010 is applicable to Tribunal and does not apply to UPPCB. Further, when there is no limitation prescribed, an action must be taken within reasonable time but reasonableness of period would have to be determined from case to case depending on facts and circumstances and public interest in the matter. There is no absolute bar for delayed action in every situation. Inaction by Statutory Regulator like UPPCB should not result in irreversible damage to affected victims. Absolute liability for continuing damage to environment and public health, cannot be ignored and 'Polluter Pays' principle has to be applied even if delay has been caused. Having said so, Tribunal, further in para 4 of the order dated 04.01.2021, said as under:

"4..... The chromium dump in question at Kanpur Dehat is continuing to cause damage to the environment and the public health. The persons responsible for dumping such hazardous waste, which has contaminated the ground water to the detriment of the inhabitants, cannot disown responsibility for liability for such damage on the ground of inaction of the authorities or closing of the companies. Corporate veil may not be a defence to absolute liability for damage to environment. Of course, the liability of appellants has to be limited to the violations clearly attributable to them. The State PCB must determine such liability specifically, after due opportunity to the appellants, preferably within a period of three months and till this is done, further coercive measures may not be taken. It is made clear that any further proceedings will be subject to further orders.

5. The above observations are for interim relief and are subject to final order after further consideration. Applications for interim relief will stand disposed of accordingly."

39. Hence, vide order 04.01.2021, Tribunal directed UPPCB to determine liability of environmental compensation specifically in respect of this appellant as also other similarly placed before us, after giving due opportunity, preferably within a period of three months and till then, no coercive action would be taken.

Tribunal's order dated 24.08.2021:

40. The matter was again taken up by Tribunal on 24.08.2021 wherein contention of appellant was reiterated that order of UPPCB did not indicate specific liability by determining the extent of waste caused by appellant. Tribunal also referred to its earlier order wherein it had directed UPPCB to determine specific liability after due opportunity to appellant within three months but unfortunately, despite lapse of six months, UPPCB neither passed any order nor submitted any report. Condemning the attitude and approach of UPPCB, Tribunal directed it to finalize the matter on or before 30.09.2021 and file its report. Appellant was also permitted to file objections, if any, to the final order passed by UPPCB in compliance of Tribunal's order dated 04.01.2021.

Report dated 30.09.2021 filed by UPPCB:

41. In purported compliance of Tribunal's order dated 04.01.2021, Member Secretary, UPPCB filed a Compliance Report dated 30.09.2021. The report has said that in order to give opportunity to the concerned proponents, UPPCB constituted a Committee; RO UPPCB, Kanpur Dehat sent a site inspection report of six industries to Committee on 13.07.2021 stating that during inspection, chromium waste 1475 MT and 3177 MT was found stored in M/s. Waris Chemicals Pvt. Ltd. Khanchandpur, Rania, Kanpur Dehat and M/s. Hilger Chem Pvt. Ltd., Village-Chiraura Raipur, Kanpur Dehat; on the basis of information supplied by proponents, during course of hearing, further investigations were conducted and five more proponents engaged in production of BCS, were identified who were also responsible for dumping of chromium waste over questioned site; consequently, amount of compensation was reviewed and revised in respect of eleven proponents/units including the present appellant, as under:

42. The above chart shows that compensation determined in respect of the present appellant was revised and reduced to Rs. 33,83,27,196/- for chromium waste, quantified as 7518.382 MT. The above amount and quantity was computed taking total quantity as 62225 MT waste and cost of remediation as Rs. 280,01,25,000/-.

IA No. 205/2021 with objections filed by appellant to Report dated 30.09.2021:

43. Appellant filed objections along with delay condonation application i.e. IA No. 205/2021 dated 08.11.2021 to the report dated 30.09.2021. It objected to the report on the ground of delay i.e., the proceedings have been launched after 15 years of closure of the unit, chromium waste dump existed since 1976 at the questioned site and such delay cannot be treated as a reasonable time. Appellant has placed reliance on Supreme Court's judgments in Shalimar Works Ltd. vs. Their Workmen, : AIR 1959 SC 1217 [LQ/SC/1959/108] and Chhedi Lal Yadav vs. Hari Kishore Yadav, (2018) 12 SCC 527 [LQ/SC/2017/647] . Absence of any period of limitation or action taken by UPPCB was contested on the ground that when no period is prescribed, reasonable time should be taken to take action particularly, when the action causes pre-judice which is pleaded by the aggrieved person. It is said that after 15 years of closure of unit, the record is not available and, therefore, reliance placed on hypothetical production by RO UPPCB, to compute compensation is wholly arbitrary and illegal. There is no production in the unit for the last 15 years since it is was closed in 2005 and the appellant is not able to produce any record hence, is pre-judiced on account of delay and this pre-judice is irreversible, therefore, such delayed action is not permissible. Appellant has found it extremely difficult to defend the matter on facts due to incapability of producing any record. It is further said that the computation of environmental compensation has been made on assumption of 'dumped attribution' which is impermissible in law particularly, as appellant has pleaded that it had not dumped its waste and operated only for limited period from 1995 to 2005.

44. Further objections are regarding non-furnishing of adverse material and arbitrary and irrational assessment; appellant stored Chromium waste generated in lined tanks within factory premises and filed an application for disposal of waste likely to be generated in terms of HWMH Rules, 1989 but the said application was not disposed of; appellant has not contributed to chromium waste dump, of size 62225 MT; basis for such total volumetric assessment of waste of 62225 MT was not provided or disclosed; earlier quantity was assessed as 45000 MT which was increased subsequently to 62225 MT without giving any foundation or basis for such increase; and on assumption basis, appellant cannot be held responsible for dumping of the said waste.

45. It is also said that order dated 15.11.2019 passed in OA Nos. 985-986 of 2019 (supra) talked of chromium dumps and water pollution at two sites i.e., Rania, village Khan Chandpur Kanpur Dehat and Rakhi Mandi Kanpur Nagar which were in existence since 1976. The aforesaid order also referred to CPCB report dated 30.10.2019 stating that both the contaminated sites located at Khan Chandpur and Rakhi Mandi required remediation of ground water and the damage of Rs. 280 Crores collectively assessed as cost for remediation was in respect of both the areas. Applying the said cost only to the dump found at village Khanchandpur, is clearly erroneous and shows that some selected units have been singled out and met arbitrary treatment.

46. Summarizing objections in para 33, appellant has said as under:

"A. Appellant had not dumped chromium waste from its operations in any dump; the waste generated was kept within the factory premises.

B. Entire exercise of determination and apportionment of liability is hit by delay and laches. Appellant is irreparably prejudiced by the delay as it has not been able to fully marshall contemporaneous evidence in defence of its innocence.

C. Appellant has been deemed responsible for the pollution caused and held liable for the compensation pay able pursuant to an adjudication to which it was not a party (i.e. OA Nos. 985-986/2019).

D. The underlying materials relying on which there was attribution to Appellant have not been furnished to the Appellant.

E. The assessment and apportionment of liability has been arbitrary and irrational."

Documents appended by appellant along with IA No. 205/2021:

47. Appellant has annexed certain documents along with objections appending the above IA which are relevant for the purpose of this Appeal and we may give brief details thereof as under:

A) Letter dated 01.04.2009: Annexure-I on page 257 is a copy of the letter dated 01.04.2009 sent by Member Secretary, UPPCB to Member Secretary, CPCB Delhi stating that six industries producing BCS operating at village Rania, Kanpur Dehat for the last 15 years have dumped their hazardous waste containing chromium in open ground of approximately 200 x 100 meter; names of industries mentioned are M/s. Cerulean Chemicals Pvt. Ltd., M/s. Chandni Chemicals Pvt. Ltd., M/s. Hilgers Chemicals Pvt. Ltd., M/s. Waris Chemicals Pvt. Ltd., M/s. Amelia Chemicals Pvt. Ltd. and M/s. Rukmani Chemicals Pvt. Ltd.; the above units were also closed under HWMH Rules, 1989; the above units did not agree to dispose of hazardous waste, illegally disposed by them, to TSDF constructed at Kumbhi, Kanpur Dehat nor ready to share any expenditure; a meeting was held between the representatives of industries, TSDF operators and UPPCB on 26.12.2005 and offer was made for payment of Rs. 1,500/ton as cost for removal but industries did not agree; total hazardous waste at the site as per IITR study report was around 45,000 tones and total expenditure considering cost of transportation, stabilization and disposal at the rate of 1,500/ton would work out as Rs. 6.75 Crores and each industry must bear Rs. 1.125 Crores; industries are not realizing their responsibility to rectify the harm done to the environment due to illegal dumping of hazardous waste at Rania, Kanpur Dehat; at least, they should have been interested in shifting and proper disposal of the illegal hazardous waste dumped by them but they are not ready; and hence, recommendation was made for imposition of fine under Section 16(3) of HWMH Rules, 1989.

B) Letter dated 10.07.2009: Annexure-II is a letter dated 10.07.2009 sent to Member Secretary, CPCB by five industries namely M/s. Cerulean Chemicals Pvt. Ltd., M/s. Waris Chemicals Pvt. Ltd., M/s. Hilgers Chemicals Pvt. Ltd., M/s. Chandni Chemicals Pvt. Ltd. and M/s. Amelia Textiles and Chemicals Pvt. Ltd. Though at the end of the letter, six industries are mentioned but one industry i.e., M/s. Rukmani Chemicals Pvt. Ltd. has not signed the letter and only Directors of five industries have signed the letter. It is an objection to the letter dated 01.04.2009 stating that before writing the said letter, no opportunity was given to industries; the waste dumped at the questioned site is a result of very long period of dumping including the period when five industries signing the letter were not in existence; no CSLF was provided and instead one was constructed by KPNS but UPPCB did not permit the same to be operated as no authorisation was issued; and the entire responsibility lie upon UPPCB for which industries cannot be made to suffer.

C) Letter dated 16.03.2021: Annexure-III is a letter dated 16.03.2021 sent by appellant to Chief Environmental Officer, UPPCB, Lucknow in reference to its letter dated 26.02.2021 and reply dated 02.12.2020 submitted before Tribunal. It is said that the authorities have not explained as to who dumped hazardous waste between 1976 to 1990 and one of the industries i.e., M/s. Cerulean Chemicals Pvt. Ltd. commenced its production in 1990 and earlier thereto, there was no representative industry including appellant; the quantity of waste has also been determined differently in as much as in 2009, it was said to be 45000 MT but in 2019, it increased to 62225 MT but how this increase took place and who is responsible for the same, has not been examined. Thereafter, complaint with regard to non-permitting functioning of CSLF constructed by KPNS was made and with regard to compensation, determined by UPPCB, the objection raised is as under:

"5. Fixation of compensation for environmental damage:-

Although, our is a micro unit started with a capital of Rs. 30 lakhs and run for a small period from 1995 to 2005, unable to pay any amount towards compensation levied on us, we submit as under:

(i) As required by you we will be sending you the figures of sales, production, net profit, which will inform you about our critical financial position for which we require one week time as our C.A. is out of town.

(ii) We are attaching the Net Worth certificate of our company with this letter.

(iii) The calculation of our ration is improper & unjustified as all of the hazardous waste produced as a result of our operations has been stored in a RCC pit in our factory premises as advised by you.

(iv) Since after set up of Ramkey and Bharat Oil & Management, Kumbhi, the factories have been sending their hazardous waste to them, may form the basis waste ratio.

(v) When our factory came into production, there was no Common Secured Land Fill facility from UPPCB, Govt. or Private Sector, then why you issued NOC and allowed chromium based industries to commence production

(vi) That whatever damage to environment at Khanchandpur area was due to negligence & delay in taking timely decisions by UPPCB and we are hardly responsible for it. Having small size and limited resources we put sincere efforts to contain the pollution problems. The UPPCB after closing our factories, engaged Ramky & Bharat Oil & Waste Management, why not earlier

(vii) Water pollution problem is enormous in Kanpur in comparison to Khanchandpur dump area. Population living in "Tejab Mill Campus" of Kanpur Chemical Works, a same type of industry very old one, is very large in numbers suffered for a long time for polluted water coming through water taps & Rakhi Mandi as well.

(viii) Dr C S Bhatt, the then Member Secretary of UPPCB written a letter dt 01.04.2009 to Central Pollution Control Board that quantity of chromium sludge was 45000 Mt and proposing levy the penalty of Rs. 6.75 Crores we had disputed the same at that time and now its 281 crores of rupees on the same alleged 6 units, which is about 27 times higher."

D) Letter dated 07.07.2021: Annexure-IV at page 268 is a copy of the letter dated 07.07.2021 sent by appellant to RO UPPCB annexing chart showing production and generation of chromium waste. The said chart on page 269 reads as under:

Year	Quantity bcs in MTs/annum	Quantity sulphate in MTs/annum	Sludge generated in MTs/annum
1997	407.25	114.5	50.90625
1998	1007.55	289.5	125.94375
1999	1596.25	367	199.53125
2000	1689.35	482	211.16875
2001	1601.5	415	200.1875
2002	1597.9	434	199.7375
2003	1642.3	399	205.2875
2004	1672.15	660	209.01875
2005	797.5	241	99.6875
	12011.75	3402	1501.46875

48. The above chart shows production of BCS and sodium sulphate while copy of the CTE placed by appellant on record shows that he was permitted production of sodium dichromate 2 MT/day and sodium sulphide 2 MT/day. It appears that subsequently by another CTE, production of BCS and sodium sulphate was permitted but that document has not been placed on record and production of sodium dichromate and sodium sulphide has not been disclosed at all. Therefore, the above chart showing about 1% of the total production as sludge generated by appellant is apparently unreliable as it does not give complete information and not based on any authentic supporting material.

Tribunal's order dated 12.11.2021:

49. Report dated 30.09.2021 submitted by UPPCB and objections by appellant were taken into consideration by Tribunal on 12.11.2021. After referring to the revised compensation determined by Statutory Regulator, Tribunal observed that UPPCB has not taken action in terms of earlier order of Tribunal; it was necessary that a specific finding is recorded about attributability of default to particular unit but report does not show such scientific exercise for determining liability; the conclusion fixing liability must be backed by scientific data and record including Form No. 1 and Form No. 13 submitted by concerned units at the time of seeking consent; and stand of the concerned units needed to be duly analysed to ascertain veracity. Delay in filing objections by appellant was condoned and objections were taken on record. Tribunal also said that to the extent liability is admitted in the objections, if any, the same ought to be straightaway enforced, pending further consideration. Consequently, Tribunal directed that let such an exercise be undertaken by UPPCB.

Notice dated 14.04.2022 by UPPCB:

50. After the above order of Tribunal, UPPCB issued notice dated 14.04.2022, directing appellant to pay environmental compensation of Rs. 44,34,53,042/- assessing quantity of chromium waste as 9854.512 MT. Contents of notice dated 14.04.2022 (annexure A/5, p/322 of paper book) reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"The persons responsible for dumping such hazardous waste, which has contaminated the ground water to the detriment of the inhabitants, cannot disown responsibility for liability for such damage on the ground of inaction of the authorities or closing of the companies. Corporate veil may not be a defence to absolute liability for damage to environment. Of course, the liability of appellants has to be limited to the violations clearly attributable to them. The State PCB must determine such liability specifically, after due opportunity to the appellants, preferably within a period of three months and till this is done, further coercive measures may not be taken. It is made clear that any further proceedings will be subject to further orders.

5. The above observations are for interim relief and are subject to final order after further consideration. Applications for interim relief will stand disposed of accordingly."

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

English Translation by Tribunal-

"This is to inform that the total environmental compensation of Rs. 280.125 Crore against 06 industries for illegal dump of 62225 MT chromium waste in Khanchandpur Rania, Kanpur Dehat was imposed by Board's letter dated 19.11.2019.

Orders have been passed by Hon'ble NGT on 04.01.2020 in Appeal no. 14, 15, 16, 17 and 18 of 2020 filed by industry owners in NGT whose main points are as under-

"The persons responsible for dumping such hazardous waste, which has contaminated the ground water to the detriment of the inhabitants, cannot disown responsibility for liability for such damage on the ground of inaction of the authorities or closing of the companies. Corporate veil may not be a defence to absolute liability for damage to environment. Of course, the liability of appellants has to be limited to the violations clearly attributable to them. The State PCB must determine such liability specifically, after due opportunity to the appellants, preferably within a period of three months and till this is done, further coercive measures may not be taken. It is made clear that any further proceedings will be subject to further orders.

5. The above observations are for interim relief and are subject to final order after further consideration. Applications for interim relief will stand disposed of accordingly."

In compliance of the above order dated 04.01.2021, the Committee was constituted by the Board vide letter dated 04.02.2021 for the hearing of the appellants. The said hearing was held on 16.03.2021 by committee at the Board Headquarters to hear the side of industries owners. During the hearing, their representations were submitted by the industry representatives. On the basis of representations received from industries and records available in the office, 05 other guilty units were identified for production of Basic Chrome Sulphate. Show cause notices were issued to all the above 05 units by the Board for deposit of environmental compensation. Above 02 units out of the above 05 referred units, representation received and on the basis of the report letter dated 16.12.2021 from the Regional Officer, Kanpur, the generated chromium waste from the year of industry operation has been transferred to TSDF for safe disposal and not reflected the disposed of Chromium Waste in countryside by the industry of Khanchandpur Rani, Kanpur, show cause notice issued to the said 02 industries. In view of the report of Regional Officer, Kanpur letter dated 14.04.2022 that 01 unit was found storing generated chromium waste into its co-unit, therefore, show cause notice issued with condition to the said industry.

Presently based on production of illegally dumped chromium waste by 08 units in Khanchandpur Rania, Kanpur Dehat, your unit has been estimated 9854.512 MT illegally dumped chromium waste for which environmental compensation is estimated Rs. 44,34,53,042.00 on the basis of the prescribed guidelines of Central Pollution Control Board Based.

In view of the above-mentioned facts and after approval of the Competent Authority, environmental compensation of Rs. 44,34,53,042.00 (Forty four crore thirty four lakh fifty three and forty two only) is imposed on the industry M/s. Waris Chemical Pvt., Khanchandpur Rania, Kanpur Dehat and it is directed that the said amount of environmental compensation should be deposited within 15 days in the bank A/c No. - 701502010002104, IFSC code-UBIN0570150 of the Vibhav Khand Gomti Nagar, Lucknow of the bank account of Union Bank of India UP Pollution Control Board and make sure to submit deposited proof of the said amount in the regional office and Board headquarters. Otherwise, action will be taken for recovery of environmental compensation like land revenue, for which the entire responsibility will be of the industry owner himself.

Also, it is directed that chromium waste stored in M/s. Waris Chemicals Pvt. Ltd., Umran Rania, Kanpur Dehat should be ensured safe disposal through Common T.S.D.F. after obtaining prior permission from the Board and its disposal proof should be sent to the Board."

IA No. 130/2022 dated 23.05.2022 filed by appellant:

51. Appellant filed above IA, seeking an interim order against notice dated 14.04.2022 issued by UPPCB, directing appellant to deposit Rs. 44,34,53,042/- towards environmental compensation holding that appellant has been found to have dumped 9854.512 MT chromium waste at the questioned site. In the above IA, appellant objected to notice dated 14.04.2022 on the following grounds:

"A) No reasons, let alone scientific reasons have been furnished for the determination of quantum of waste and consequent liability. This is contrary to the repeated directives of the Hon'ble Tribunal in prior orders.

B) The basis (i.e., adverse materials) on which the UPPCB has purported to arrive at the quantum of waste and liability have not been furnished. This includes the report and recommendation of the regional officer, referred to in the Notice dt. 14.04.2022.

C) The UPPCB has failed to take note of and deal with any of the factual or legal objections raised by the Appellant including the following:

(i) The Appellant has long ceased production (since 2005).

(ii) The Appellant was functional only for a short duration preceding 2005.

(iii) The Appellant had consumed limited quantity of chromium ore and generated only limited chromium waste which is nowhere close to the quantity alleged to be dumped.

(iv) The chromium dumps in question are in existence since 1976 (as recorded by the Hon'ble Tribunal in various judicial orders).

(v) There were various other entities operating chromium-based units in the concerned area.

(vi) The entire exercise is highly belated and time barred.

(vii) The direction to collect the penalty by way of arrears of land revenue has no basis in law.

(viii) There is no provision empowering UPPCB to issue direction imputing liability to proprietor/shareholder/director/manager of a unit which is a company."

52. Reply dated 04.05.2022 to the notice dated 14.04.2022: Appellant submitted reply dated 04.05.2022 (annexure-A/6, p/327) to Chief Environmental Officer, Circle-II, UPPCB, Lucknow stating that RO UPPCB has not complied with the directions of Tribunal with regard to specific findings about attributability of default of particular unit and therefore, the assessment of environmental compensation and quantum of waste is arbitrary. It further says that UPPCB has failed to take note of the following:

"(i) The undersigned units have long ceased production (since 2005).

(ii) The units were functional only for a short duration preceding 2005.

(iii) The undersigned had consumed limited quantity of chromium ore and generated only limited chromium waste which is nowhere close to the quantity alleged to be dumped.

(iv) The chromium dumps in question are in existence since 1976 (as recorded by the Hon'ble Tribunal in various judicial orders).

(v) There were various other entities operating chromium-based units in the concerned area.

(vi) The entire exercise is highly belated and time barred.

(vii) The direction to collect the penalty by way of arrears of land revenue has no basis in law.

(viii) There is no provision empowering UPPCB to issue direction imputing liability to proprietor/shareholder/director/manager of a unit which is a company."

Oversight Committee Report dated 22.04.2022 filed in OA Nos. 985-986 of 2019:

53. The said report of the Committee was filed by appellant as annexure-A/7 at p/335 to IA No. 130/2022. Compliance status as well as the recommendation of the Oversight Committee is as under:

S. No.	Directions issued by Hon’ble NGT	Concerned Department	Compliance status
1	Finalization of volume of chromium dump	CPCB & UPSIDA	A joint inspection of the site was carried out by the CPCB & IIT Kanpur along with the officials of the UPSIDA and District Administration on 17.11.2021. As per the joint inspection report, the current and finalized estimate of available waste volume is 1,22,799 m3. The same has been approved by the State Level Monitoring Committee on 04.01.2022.
			The compliance report submitted by the UPSIDA is annexed as Annexure I. The minutes of meeting of the joint inspection conducted by the CPCB & IIT Kanpur is annexed as Annexure II.
2.	Preparation of roadmap for remedial action by five-member expert Committee as Constituted by Hon’ble NGT in order dated 23.11.2021.	UPPCB & CPCB	In spite of repeated reminders, no information has been furnished by the nodal agencies. Informally it is learnt that no such meeting has been held so far.
3.	Recovery of EC imposed on erring industries	UPPCB	The UPPCB had imposed an EC of Rs. 280 Cr against six defaulting industries engaged in production of Basic Chrome Sulphate which were responsible for the illegal dumping of Chromium Waste at Rania, Kanpur on 19.11.2019.
			On 16.03.2021, the UPPCB had identified 5 more such industries against whom the show-cause notices were issued by the Board. Against the 2 industries, viz. M/s Kalina Chemicals Pvt. Ltd. and M/s Bharat Chemical Udhyog, the Board has imposed an EC of Rs. 18,02,72,088.00 and Rs. 1,40,07,150.00 respectively. After considering the replies from 3 units viz. M/s Khanna Vivek Chemicals Pvt. Ltd. C30D, Site-I, Panki, Kanpur Nagar, M/s Unichem India, Village Malo, GT Road, Chaubepur, Kanpur Nagar and M/s Rahman Industries Ltd, 1002, 1003, Akrampur, Chakarmpur, show cause notices have been revoked.
			The details of EC imposed on the erring industries are mentioned in Annexure III.
4.	Recovery of EC imposed on UP Jal Nigam	UP Jal Nigam	The case is still pending in the Hon’ble Supreme Court.
			The compliance report and documents submitted by the UP Jal Nigam in this regard is annexed as Annexure IV.
5.	Status on 20 MLD CETP in Jajmau	NMCG	As per the compliance report submitted by the NMCG on 24.03.2022, the overall progress of the project is 43.47% which is
			only 13.36% more than the previous progress of June 2021. Now the target date for completion has been shifted 02.02.2022 to 02.06.2022. The detailed progress report submitted by the NMCG is annexed as Annexure V.
6.	Action taken on non- compliant CETP in Jajamu	UPPCB	The UPPCB vide its letter dated 20.04.2022 has imposed an EC of Rs. 11,62,500 for non- compliant CETP for the period of 04.06.2021 to 05.04.2022 against the Ganga Pollution Control Unit, UP Jal Nigam.
			The letter issued to the UP Jal Nigam in this regard is annexed as Annexure VI.

Thus, it is clear from the reports of the concerned departments that there is absolutely no progress in actual removal of the chromium dump and only paperwork is being done.

IV. RECOMMENDATIONS BY THE OVERSIGHT COMMITTEE

In view of the above, we recommend as follows:

1. The Chief Secretary, UP may be directed to hold a meeting with the nominees of MoEF&CC, CPCB, NMCG, UPPCB and District Magistrates of Kanpur Dehat and Kanpur Nagar as mentioned in the order of the Hon'ble NGT dated 23.11.2021 at the earliest so that the actual work of scientific disposal of chromium dump is started without any further delay and completed in the shortest possible time. The Chief Secretary, UP may also be directed to monitor the execution of the plan every month and forward a monthly progress report in this regard to the Oversight Committee for the submission of quarterly progress report to the Hon'ble NGT. The Chief Secretary may further be directed to specify the date when the actual work for removal of chromium dump shall start.

2. The progress of 20 MLD CETP which is under construction in Jajmau is far from satisfactory (only 13.36% in last 9 months and cumulative progress of 43.47% only till now). Now the timelines for completion of the project has been shifted from February 2022 to June 2022. Considering the present pace of progress, it does not seem to be possible. The Chief Secretary may be directed to include the monitoring of this project also in his monthly meeting on environmental matters and send the minutes of the meeting to the Oversight Committee for the submission of quarterly progress report to the Hon'ble NGT.

3. The Member Secretary, UPPCB may be directed to ensure that the compensation imposed on the erring industries/agencies is realized without any further delay.

4. Though there are mechanisms available to recover EC from the defaulter industries which are in operation, for closed down units when efforts are made to recover EC as arrear of land revenue, due to judicial pronouncement that EC cannot be recovered as arrear of land revenue, the recovery becomes almost impossible. The Central Government may be directed to amend the relevant Act to include the recovery of EC as arrear of land revenue to facilitate the recovery from the closed units.

5. The Member Secretary, UPPCB may be directed to take effective actions against erring officials/industries for continued pollution of the river Ganga through regular monitoring of the functionality of the CETP and STPs under various provisions of the Environmental laws.

The Member Secretary, UPPCB is directed to send this report to the Registrar General, National Green Tribunal, Principal Bench, New Delhi for placing the same before the Hon'ble Tribunal with a copy to the Chief Secretary, Government of Uttar Pradesh for necessary action. The report also be uploaded on the website of the Committee."

Compliance Report dated 28.07.2022 filed on 01.08.2022 by UPPCB:

54. Pursuant to the above order dated 12.11.2021, RO (Incharge), Kanpur Dehat submitted a further compliance report dated 28.07.2022 vide e-mail dated 01.08.2022. It is pointed out in the report that 5 additional units were issued show cause notices whereof four had submitted their reply and the fifth one i.e., M/s. Kaleena Chemicals Pvt. Ltd. did not submit any reply. In respect of two units namely, M/s. Khanna Vivek Chemicals Pvt. Ltd. and M/s. Unichem India, it was found that they have properly disposed of all generated hazardous waste into common TSDF and no waste was dumped at Khan Chandpur Rania, Kanpur Dehat site by the said units. The said units also modified their manufacturing process so that no BCS waste is generated. On the basis of the report and recommendations of RO UPPCB Kanpur Dehat, show cause notices issued to the aforesaid two units were revoked with the approval of Competent Authority, on 14.01.2022. Further, in respect of M/s. IGS Chemicals Pvt. Ltd., Kanpur Nagar, show cause notice dated 29.09.2021 was revoked on 14.04.2022 recording following findings:

"9.... production was done only from 2003 to 2005 and during that period about 440.695 MT chromium purchased and 881.30 BCS produced and 111.80 MT waste was generated. The waste 111.80 MT has been sent to its sister unit M/s. Waris Chemicals Pvt. Ltd., Umran, Rania, Kanpur Dehat and safely stored under covered shed. Regional Officer, Kanpur Dehat and Regional Officer, Kanpur Nagar has jointly inspected the unit M/s. Wails Chemicals Pvt. Ltd., Umran, Rania, Kanpur Dehat for verification of stored waste quantity. Waste about 110 to 115 MT in plastic bags was found stored under covered shed. Regional Officer, Kanpur has recommended for revocation of show cause notice to M/s. IGS Chemicals Pvt. Ltd. Accordingly, the show cause notice dated 29.09.2021 issued to M/s. IGS Chemicals Pvt. Ltd. has been revoked on 14.04.2022."

55. Compensation was also revised in the light of further facts came to the notice of Committee comprising Mr. Radhey Shyam, Mr. J.P. Maurya, Dr. Anil Kumar Mathur, Environmental Engineers, Lucknow and Mr. Ashutosh Pandey, A.E.E./RO (Incharge), Kanpur Dehat who had submitted report dated 28.07.2022. The findings from para 10 and onwards and revised assessment chart given in the report read as under:

"10. That M/s. Rahman Industries Ltd., (Old Name Bharat Chemical Udhyog) 1002, 1003, Akrampur, Chakarmpur, Unnao has also submitted its reply with respect to issued show cause notice. The main content of the reply was that they have purchased the closed unit M/s. Bharat Chemical Udhyog, 1002, 1003, Akrampur, Chakarmpur, Unnao in Year 2004. They have taken membership of common TSDF for disposal of hazardous waste since start of production in their unit and have obtained relevant authorization under HWM Rule and relevant consent to operate under Air and Water Act. Their unit is law abiding unit and the actual defaulter was the old unit M/s. Bharat Chemical Udhyog, 1002, 1003, Akrampur, Chakarmpur, Unnao which was closed by UPPCB and has also provided the name and address of the owners of the old unit. U.P. Pollution Control Board has directed Regional Officer, Unnao to go through the representation and submit the report, taking into cognizance the direction of Hon'ble NGT while deciding the representation. Regional Officer, Unnao has submitted the report and has confirmed that M/s. Rahman Industries Ltd. has purchased the above unit in Year 2004 when the unit was lying closed as per direction of Board. Regional Officer, Unnao has also informed that the unit M/s. Rahman Industries Ltd., 1002, 1003, Akrampur, Chakarmpur, Unnao is complying unit. On the basis of recommendation of Regional Officer, Unnao and reply of industry, show cause notice issued against M/s. Rahman Industries Ltd., 1002, 1003, Akrampur, Chakarmpur, Unnao has been revoked on 17.01.2022 and fresh show cause notice has been issued against the owners of actual defaulter unit M/s. Bharat Chemical Udhyog vide letter dated 17.01.2022.

11. That Regional Officer, Unnao has sent the report dated 13.04.2022 informing that M/s. Bharat Chemical Udhyog has submitted representation on 13.04.2022. Applicant has informed that the land has been given on lease to M/s. Bharat Chemical Udhyog by Smt. Tarannum Fatima in 1997. As per representation unit was operated for total 567 days and due to infelicitous, industry had stopped production. Thereafter Smt. Tarannum Fatima has sold the industry along with office and Tin Shed to M/s. Rahman Export Pvt. Ltd., Wajidpur, Jajmau, Kanpur on 28.06.2004. Applicant has submitted the details showing that during production since 01 July 1999 to 31 December 2003, the industry was operated for 567 days and 226.80 MT hazardous waste was generated.

12. That the records available in the Regional Office has been scrutinized and as per office records during January 2001 to March 2001, industry has been operated for total 33 days, which matches with the details submitted by the industry. For rest period, the detail is not available in the office records. As per the inspection report dated 28.08.1999, the hazardous waste generated from the industry is 15 Ton per month. Thus, on the basis of 25 days per month operational period and hazardous waste generation 15 Ton per month, 311.27 MT hazardous waste is generated in 567 days.

13. As per the information submitted by unit, the waste generated in 567 days has been stored in 03 pucca tanks of size 11x7x5 ft-02 Nos. and 13x7x5 ft. The size of first two tanks has been verified through the inspection report dated 15.02.2001 and 07.04.2001. But when the unit was sold to M/s. Rahman Exports Pvt. Ltd., neither such storage was found as per the statement of M/s. Rahman Exports Pvt. Ltd., nor any proof was provided regarding disposal of stored hazardous waste to Common TSDF. So as per recommendations of Regional Officer, Unnao, Environmental Compensation was imposed against the unit for disposal of 311.27 MT chromium waste.

14. All the 05 units, who had gone to Hon'ble Tribunal for filing the appeal, have not given any record regarding Form-1 and Form-13. The inspection report of Regional Officer, Kanpur Dehat/Kanpur Nagar of relevant period shows that the concerned industries have time and again, thrown their generated hazardous waste unscientifically outside their industry premises. The relevant reports are attached as Annexure-1

15. This shows that the concerned industries were definitely responsible for disposal of generated hazardous waste to the chromium dump site. Moreover, this is also a fact that this dumped hazardous waste has impacted the soil due to leachate, which has inturn increased the size of dumped hazardous waste. Finally, the Environmental Compensation against total 08 units responsible for dumping of chromium waste have been imposed on dated 14.04.2022 in the ratio of their production and operation period and details of existing storage of chromium waste inside the industrial premises, which is still not disposed in some units.

Industries could not object on the imposition amount because Environmental Compensation imposed is on true basis and industry did not submit any proof against facts. Imposition of Environmental Compensation is based upon the true facts and on official records in the light of natural justice. On the basis of above facts it is recommended to reject industry representation letter Dated 23/05/2022.

The details of Environmental Compensation imposed against the unit are as follows:

Sr No	Name & Address of Industry	Production capacity (MTD)	Operational Period	Assessed quantity of dumped Chromium waste as per percentage of production. (MT)	Revised Assessed quantity of dumped Chromium waste after assessment of stored quantity in the premises. (MT)	Revised Environmental Compensation (in Rs.)
1	M/s	4	1990 to	उ पादन मता के आधार पर कु ल वे ट का लगभग 28.092 fतशत ( ोfमयम वे ट 17.392.854 एम.टk.)	17392.854	87,69,99,345
	Cerulean		Oct 2005		+[28.092*4652/2
	Chemicals		(180		8.092+8.779+4.6
	Pvt Ltd,		month)		82+15.021+5.77
	Khanchadpur Rania, Kanpur				4)]= 19488.874
	Dehat.
2.	M/s Waris Chemicals Pvt Ltd. Khanchandp	3.5	1994 to Oct 2005 NOC dated	उ पादन मता के आधार पर कु ल वे ट का 18.299 ितशत ( ोिमयम वे ट)	11329.512- 1475= 9854.512	44,34,53,042
	ur Rania, Kanpur Dehat		5-9-94 (134 month)	लगभग 11329.512 एम.ट .) उदयोग पGरसर म लगभग
				1475 एम.ट ोिमयम
				वे ट िनर ण के समय
				भhडाGरत पाया गया।
				िजसमे 111.8 एम. ट .
				मेसस आई. जी . एस.
				के िमकल ाो० िल० से
				जिनत वे ट है।
				उ त तaय से प ट है क
				उदयोग दवारा लगभग
				9854.512 एम .ट .
				ोिमयम वे ट को अवैध
				प से फे का गया है।
3.	M/s	3	1999 to Oct 2005 NOC dated 12-8-99 (75 month)	उ पादन मता के आधार पर कु ल वे ट का लगभग 8.779 ितशत ( ोिमयम वे ट लगभग 5435.267 एम.ट .)	5435.267+[8.779	27,40,62,295
	Chandni				*4652/(28.092+8.
	chemicals				779+4.682+15.0
	Pvt Ltd,				21+5.774)]=
	Khanchandpur rania,				6090.273
	Kanpur
	Dehat.
4.	M/s Amelia	3	2001 to Oct 2005 NOC dated 11- 09-2001 (40 month)	उ पादन मता के आधार पर कु ल वे ट का लगभग 4.682 fतशत ( ोfमयम वे ट लगभग 2898.809 एम.टk.)	2898.809+[4.682	14,61,66,557
	Textiles &				*4652/(28.092+8.
	Chemicals				779+4.682+15.0
	Pvt Ltd, 23,				21+5.774)]=
	Khanchadpur, Rania,				3248.146
	Kanpur
	Dehat.
5.	M/s Heilger chem Pvt Ltd, vili- Chiraura Raipur,	4	1995 to Oct 2005 (124 months)	उ पादन मता के आधार पर जfनत कु ल वे ट का 19.325 fतशत लगभग 11981.744 एम.टk	11981.744- 3177= 8804.744	39,62,13,484
	Rania, Kanpur			ोfमयम वे ट
	Dehat.			उदयोग प रसर म लगभग
				3177 एम .टk.
				ोfमयम वे ट
				fनरk ण के समय
				उRत तáय से प ट है fक
				उदयोग दवारा लगभग
				8804.744 एम .टk.
				ोfमयम वे ट को अवैध
				प से फे का गया है।
6.	M/s	3.5	31-08-96	उ पादन मता के आधार पर कु ल वे ट का 15.021 fतशत ( ोfमयम वे ट लगभग 9300.346 एम.टk.)	9300.346+[15.02	46,89,51,039
	Rukmani		to Oct		1*4652/(28.092+
	Chemicals		2005		8.779+4.682+15.
	Pvt Ltd.		NOC		021+5.774)]=
	Rania,		dated		10421.134
	Kanpur		31-08-96
	Dehat		(110
			month)
7.	M/s	2	24-09-	उ पादन मता के आधार पर कु ल वे ट का 5.774 fतशत ( ोfमयम वे ट लगभग 3575.198 एम.टk.)	3575.198+[5.774	18,02,72,088
	Kaleena		1999		*4652/(28.092+8.
	Chemicals, Pvt. Village Malo, GT		21-10-2005 (74 months)		779+4.682+15.0 21+5.774)]= 4006.046
	Road,
	Chaubepur,
	Kanpur
	Nagar
8.	M/s Bharat	-	567 days	उ पादन के आधार पर जfनत ोfमयम वे ट लगभग 311.270 एम.टk.	311.270	14,00,71,50
	Chemical
	Udhyog by
	Smt.
	Tarannum
	Fatima
Total					62,225 MT	280,01,25000

	Name & Address of Industry	Production capacity (MTD)	Operational Period	Assessed quantity of dumped Chromium waste as per percentage of production. (MT)	Revised Assessed quantity of dumped Chromium waste after assessment of stored quantity in the premises. (MT)	Revised Environmental Compensation (in Rs.)
1	M/s	4	1990 to	On the basis of	17392.854	87,69,99,345
	Cerulean		Oct 2005	production capacity	+[28.092*4652/
	Chemicals		(180	28.092 percent of total	28.092+8.779+4
	Pvt Ltd,		month)	waste (Chromium	.682+15.021+5.
	Khanchadpur Rania, Kanpur			waste 17392.854 MT)	774)]= 19488.874
	Dehat.
2.	M/s Waris	3.5	1994 to	On the basis of	11329.512-	44,34,53,042
	Chemicals		Oct 2005	production capacity	1475=
	Pvt Ltd.		NOC	18.299 percent of	9854.512
	Khanchand pur Rania, Kanpur		dated	total waste (Chromium waste
	Dehat
	Kanpur		5-9-94	11329.512 Metric
	Dehat		(134	Ton)
			month)	In the campus of
				industry approx
				1475 MT chromium
				waste storage has
				been found during
				the inspection. Out
				of which 111.8 MT
				was generated by
				Masers I.G.s.
				Chemcial Pvt. Ltd.
				From the above fact
				it is clear that almost
				9854.512 MT
				Chromium waste
				has been thrown
				illegally.
3.	M/s	3	1999 to Oct 2005 NOC dated 12-8-99 (75 month)	On the basis of	5435.267+[8.77	27,40,62,295
	Chandni			production capacity	9*4652/(28.092
	chemicals			8.779 percent of total	+8.779+4.682+
	Pvt Ltd,			waste (Chromium	15.021+5.774)]
	Khanchadpur Rania, Kanpur			waste 5435.267 MT)	= 6090.273
	Dehat.
4.	M/s Amelia	3	2001 to	On the basis of	2898.809+[4.68	14,61,66,557
	Textiles &		Oct 2005	production capacity	2*4652/(28.092
	Chemicals		NOC	4.682 percent of total	+8.779+4.682+
	Pvt Ltd, 23,		dated	waste (Chromium	15.021+5.774)]
	Khanchadpur		11-09-	waste 2898.809 MT).	=
	Rania, Kanpur dehat.		2001 (40 month)		3248.146
5.	M/s Heilger	4	1995 to	On the basis of	11981.744-	39,62,13,484
	Chem Pvt		Oct 2005	production capacity	3177=
	Ltd, Vill-		(124	19.325 percent of total	8804.744
	Chiraura		months)	waste produced out of
	Raipur,			which approx
	Rania,			11981.744 MT
	Kanpur			Chromium waste.
	Dehat.			In the campus of
				industry approx 3177
				MT chromium waste
				storage has been
				found during the
				inspection.
				From the above fact, it
				is clear that almost
				8804.744 MT
				Chromium waste has
				been thrown illegally.
6.	M/s	3.5	31-08-96	On the basis of	9300.346+[15.0	46,89,51,039
	Rukmani		to Oct	production capacity	21*4652/(28.09
	Chemicals		2005	15.021 percent of total	2+8.779+4.682
	Pvt Ltd.		NOC	waste (Chromium	+15.021+5.774)
	Rania,		dated	waste 9300.346 MT).	]=
	Kanpur		31-08-96		10421.134
	Dehat		(110
			month)
7.	M/s	2	24-09-	On the basis of	3575.198+[5.77	18,02,72,088
	Kaleena		1999	production capacity	4*4652/(28.092
	Chemicals, Pvt. Village Malo, GT		21-10-2005 (74 months)	5.774 percent of total waste (Chromium waste 3575.198 MT).	+8.779+4.682+ 15.021+5.774)] =
	Road,				4006.046
	Chaubepur,
	Kanpur
	Nagar
8.	M/s Bharat	-	567 days	On the basis of	311.270	14,00,71,50
	Chemical			production Chromium
	Udhyog by			waste produced
	Smt.			311.270 MT).
	Tarannum
	Fatima

Total

62,225 MT

280,01,25000

56. The above chart shows that environmental compensation in respect of appellant was re-revised to Rs. 44,34,53,042/- on the assessed quantity of waste as 9854.512 MT. This assessment was again made on total quantity of dumped waste taken as 62225 MT and remediation cost as Rs. 280,01,25,000/-.

Documents appended to the Report dated 28.07.2022:

57. Letter dated 15.04.2000 (p/477): This letter was sent by RO UPPCB to Chief Environment Engineer, Hazardous, UPPCB, Lucknow. It is stated therein that five industries namely M/s. Cerulean Chemicals Pvt. Ltd., M/s. Hilgers Chemicals Pvt. Ltd., M/s. Waris Chemicals Pvt. Ltd., M/s. Chandni Chemicals Pvt. Ltd. and M/s. Rukmini Textiles and Chemicals Pvt. Ltd. are dumping their hazardous waste outside the factory premises despite several warnings. Further, the units are running without consent and authorisation. The contents of the letter dated 15.04.2000 read as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"In the context of the above subject, it is to be informed that despite of repeated instructions, the basic chrome sulphate manufacturing industries established in Rania area are dumping the containing hazardous wastes on the roadside and outside of premises of the industries. Due to which there is a possibility of contamination of underground water.

Therefore, you are requested to kindly issue any instructions to these industries from your level as well and would like to take action against these industries as per the rules so that disposal of hazardous waste in this area can prevent possible underground water and pollution. Most of these industries have obtained neither consent from the Board nor authority from the Board. On 15.02.2000, Hon'ble Environment Minister of State has also directed for necessary action in this regard during his visit to Etawah.

The following units in Kanpur-Dehat whose detailed inspection report is attached.

1. M/s. Cerulean Chemicals Pvt. Ltd.

2. M/s. Heilzer Chemical Pvt. Ltd.,

3. M/s. Waris Chemical Pvt. Ltd.

4. M/s. Chandni Chemical Pvt. Ltd.

5. M/s. Kamani Chemical Pvt. Ltd., currently closed

Keeping in view the detailed facts, you are requested to kindly take action against the referred units under the Environment Protection Act, 1986."

(English Translation by Tribunal)

58. Inspection Report dated 17.10.2000: On page 475 is the inspection report by Joint Committee comprising Shri U.N. Upadhayay, Assistant Environment Engineer and Shri Rajender Prasad, Junior Engineer submitted to RO UPPCB, Kanpur Dehat. It is said that inspection was conducted in the presence of representative of appellant's unit and several violations were found. The extract of the report reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"The inspection of the above toxic industry was done by undersigned along with Mr. Rajendra Prasad, Junior Engineer on 17.10.2000. Industry representative Mr. B.R. Kushwaha was present at the time of inspection. The following facts came to light during the inspection.

1. Basic Chrome Sulphate and Sodium Sulphate are produced by industry while using Chromite ore, Soda ash, Sulfuric Acid, sira as raw material. Industry was found operational at the time of inspection.

2. In industry, water is used for domestic purposes and in production processes, mainly in leaching process and boiler.

3. Domestic effluent is disposed off in septic tank/soak pit. No effluent is generated from the process.

4. Coal fired boiler and roasting machines have been established in the industry. Coal is used as fuel. Air pollution control system is not established in the above. The chimney for emission has been installed as per the Board's standards. Monitoring platform and mort hole have not been established for emission sample collection.

5. Production processes of the industry mainly generate chromium containing sludge which is about 2.5 MT/day. Proper system of neutralization has not been established. Temporary storage arrangement has been made inside the industrial premises to store sludge containing chromium generated from the process. Sludge was found not to drain into the tank built in the industrial premises. The said sludge was found to be dumped outside the industrial premises on the side of highway and on the surrounding land.

6. Instructions have been given from time to time by this office to put the hazardous solid waste in the tank built in the industrial premises, but the provisions of the Hazardous Waste Rules under the Environment Protection Act, 1986 are always being violated by the industry.

7. The industry is disposing of effluents, air emissions and hazardous solid waste without obtaining the consent of the board from the water and air and sanitation authorization forms.

In view of the above, the inspection report of the industry was submitted for observation and further action."

(English Translation by Tribunal)

59. Inspection Report dated 02.09.2003 (p/480 of paper book): This inspection report was submitted with reference to inspection made on 21.08.2003 of the appellant's unit, by a Committee comprising Assistant Environment Engineer and Junior Engineer who found several violations on the part of appellant including dumping of hazardous waste outside the factory premises. The content of report reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"The above industry was inspected by undersigned on 21.08.03. During the inspection, industry representative Mr. B.R. Kushwaha, manager was present. Report is following:

1. The industry produces 30 tons per day of basic sulfate by using chromite ore, Soda ash, Caustic sulphuric acid as raw material.

2. In the industry, water is used in the domestic purposes and production process. In the industry, during the process of neutralization, those outflow is re-used through the tank.

3. To heat the raw material in the industry, 2.0 tonnes of coal per day is used as fuel in the established furnace. The height of the chimney in relation to the furnace is about 30 m from the ground level. In the industry, Thermo Pack Boiler is established, in which 2.0 ton per day rice husk is used as fuel. 25 meter high system of cyclone dust collector is established for air pollution control system.

4. Hazardous solid waste containing chrome is generated in the industry, for which a concrete tank has been set up by the industry in the premises itself for temporary storage, in which partial quantity of waste is found. The waste is then dumped in the surrounding areas.

5. Even in the industry premises, waste containing chrome is kept on the raw land and disobeying the board's order, the waste is being disposed of on the road side and surrounding land outside the industry premises.

6. For establishment of Hazardous Waste Collective Treatment System in Kanpur-Dehat Kumbhi, land has been allotted to the Kanpur Pollution Control committee, but no action has been taken in respect to progress work.

In the above circumstances, it would be appropriate to take necessary action against the industry under the Environment Protection Act, 1986."

(English translation by Tribunal)

60. Letter dated 04.09.2003 (p/479 of paper book): This is a letter sent by RO UPPCB to Chief Environment Engineer, Circle-2, UPPCB, Lucknow complaining about violation of environmental laws and norms by appellant by dumping hazardous waste outside the factory premises on road site despite repeated instructions and warnings and recommendation was made to take appropriate action against the unit under EP Act, 1986. The content of the letter reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"Please take reference to your abovementioned letter no. F 18400/C- 2/Sa. Hazardous-171/2003 dated 17.07.03. In the context of the above, the inspection of Waris Chemical Pvt. Ltd., Rania Kanpur Dehat was done by the Environmental Engineer and Junior Engineer of this office. Basic Chrome Sulphate is produced by the industry. A pucca tank is established for temporary storage in the industry premises to dispose of the waste containing chrome generated through production process by the industry but the hazardous waste is being dumped on the road side and nearby areas instead of putting it in the above tank, for which even instructions have been given several times by the Board but the instructions of the Board are not being followed by the industry. The work of making Kalpi Marg four-lane by National Highway is in progress but due to dumping of waste on the road side, there is obstruction in the construction work. Kanpur Pollution Control Committee has not yet initiated any action at the collective hazardous waste site for proper disposal of hazardous waste in village Kumbhi Akbarpur Rania.

Keeping in view the above circumstances, recommendation for action against the industry under Environment (Protection) Act 1986 alongwith report is submitted herewith."

(English translation by Tribunal)

61. Inspection dated 21.08.2003 (p/491 of paper book): The inspection was conducted by a team comprising Assistant Environment Engineer and Junior Engineer wherein besides others, they found dumping of hazardous chromium waste outside the factory premises and thereby violating the provisions of EP Act, 1986. Contents of the inspection report are as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"The above industry was inspected by the undersigned on 21.08.03. At the time of inspection of the above industry, the representative of the industry Mr. B.R. Kushwaha, Manager was present.

1. The industry produces 3.0 tons of basic chrome sulfate per day by using chromite ore, soda ash, caustic sulphuric as raw material.

2. In industry, water is used for domestic purposes and in the production process. The effluent generated during the process of neutralization, is re-used through the tank.

3. 2.0 tonnes of coal per day is used as fuel in the furnace set up for heating the raw material in the industry. The height of the chimney in connection with the furnace is about 30 m from the ground level. In the industry, Thermo Pack Boiler is established, in which 2.0 ton per day rice husk is used in the form of fuel. For air pollution control, a 25 meter high system of syclone dust collector is established.

4. Chromium hazardous solid waste is generated in the industry for which its temporary disposal, a permanent tank has been built in the premises itself, in which the little waste was found. The waste has been disposed in the surrounding area by the industry.

5. Even in the industry premises, the waste containing chrome is kept on the raw land and by disobeying the order of the Board, the waste is being dumped on the road side and nearby areas outside the industry premises.

6. In Kanpur-Dehat Kumbhi, the land has been authorised to the Kampur Pollution Control Committee for setting up a hazardous waste group treatment system, but no action has been taken regarding the development work.

Under the above circumstances, it would be appropriate to take necessary action against the industry under the Environment Protection Act, 1986.

Submitted for other necessary action."

(English translation by Tribunal)

62. Inspection dated 07.04.2004 (p/492 of paper book): This inspection was conducted by Assistant Environment Engineer and Junior Engineer in presence of Shri B.R. Kushwaha, representative of the unit wherein it was found dumping of waste outside the factory premises and also lack of consent and authorisation. Contents of the inspection report reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"The above industry was inspected by the undersigned along with the Junior Engineer on 07-4-2000. At the time of inspection, industry representative Mr. B.R. Kushwaha, Manager, was present. The report is as follows:

1. Basic chrome sulphate is produced by industry using chrome ore.

2. A temporary storage system is made in the industry premises by industry after Board's directions for disposal of hazardous waste containing chrome which is generated during the production in the industry.

3. At the time of inspection, the industry did not put waste in the tank made for temporary storage of waste, and it was found to be outside the premises and on the side of the Kalpi Road, due to which there can be underground water pollution. For this, the industry has been directed several times in writing and verbally as well, but the waste is being dumped by the industry outside instead of putting it in the temporary storage system made in factory premises.

4. The industry has not even applied for obtaining consent from Board for the year 2000.

5. The industry has/has not obtained authority for disposal of hazardous waste from the Board.

Report submitted for necessary action."

(English translation by Tribunal)

63. Inspection dated 20.04.2004 (p/483 of paper book): This inspection was conducted by joint Committee comprising RO UPPCB, Assistant Environment Engineer and Junior Engineer in presence of Shri B.R. Kushwaha, representative of the unit and it found several violations as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"The above industry was inspected by the undersigned on 20.04.2004, industry representative Mr. B.R. Kushwaha was present at the time of inspection. Report is as follows.

1. The industry produces 3 tons per day of basic chrome sulfate by using chromite ore, Soda ash, Caustic sulphuric acid as raw material.

2. Water from industry is used for domestic purpose and production process. The industry re-uses the effluent generated during the process of neutral injection through tank.

3. For heating the raw material in the industry, coal is used 2.0 tons per day in established furnace. The height of the chimney in relation to the furnace is about 30 m from the ground floor. In the industry boiler is installed, in which 2.0 ton per day rice husk is used as fuel. For air pollution control, 25 m high stage chimeny is installed with cyclone dust collector.

4. In the industry, hazardous solid waste containing chrome is generated, for which a permanent tank has been set up by the industry in the premises for temporary storage, in which little waste has been found. Waste is dumped to the surrounding areas by the industry.

5. To establish hazardous waste mass treatment system in Kanpur Dehat Kumbhi, land has been allotted to Kanpur Pollution Control Committee but no action has been taken in relation to development work.

Report submitted for necessary action."

(English translation by Tribunal)

64. Inspection report dated 26.04.2004 (p/489 of paper book): The inspection was conducted by a team comprising Assistant Environment Engineer and Junior Engineer wherein besides others, it was observed that hazardous waste containing chromium was being dumped outside the factory premises and the tank inside the factory was found partially filled. Contents of the report reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"The above industry was inspected by the undersigned on 20.04.04. Industry representative Mr. B.R Kushwaha was present at the time of inspection. Report is as follows

1. Basic Chrome Sulphate is produced 3 tonne per day by the industry on daily basis by using Chromite ore, Soda Ash, Caustic Sulfuric Acid as raw material.

2. Water is used for domestic purpose and production process in industry. The effluent generated is re-used through a tank during the process of neutral injection in the industry.

3. 2.0 tonnes of coal per day is used as fuel in the furnace set up for heating the raw material in the industry. The height of Chimney related to furnace is about 30 m from the ground level. Boiler is installed in the industry, in which 2.0 ton per day rice husk is used as fuel. For air pollution control system cyclone dust collector is established at 25 m high.

4. In the industry, hazardous solid waste containing chrome is generated, for which a concrete tank has been set up by the industry in the premises for temporary storage, in which little waste was found. Waste is dumped in the surrounding areas by the industry.

5. To establish hazardous waste mass treatment system in Kanpur Dehat Kumbhi, the land has been allotted to the Kanpur Pollution Control Committee but for the development work no action has been taken in this regard so far.

Report submitted for necessary action."

(English translation by Tribunal)

65. Inspection report dated 17.05.2004 (p/482 of paper book): The said report was submitted after making inspection on 13.05.2004 and it was found that appellant's unit was dumping unauthorisedly. The content of the report reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"Kindly take reference of the above subject, in relation to which demanded inspection report of the industry is being attached and is being sent for necessary action. On 13.5.2004 in Kumbhi, some solid waste was found dumped from BSC industry without development of any temporary area."

(English translation by Tribunal)

66. Inspection dated 12.06.2004 (p/488 of paper book): The inspection was conducted by a team comprising Assistant Environment Engineer and Junior Engineer wherein besides others, it was observed that hazardous waste containing chromium was being dumped outside the factory premises and the tank inside the factory was found partially filled. Contents of the report reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"The above industry was inspected by undersigned on 12.06.2004. Industry representative Mr. B. R. kushwaha was present at the time of inspection. The report is as follows:

1. The industry produces 3.5 tons per day of basic chrome sulfate by using chromite ore, Soda ash, Caustic, sulphuric acid as raw material.

2. Water is used for domestic purpose and production process in industry. There is a system of re-using the out flow generated from industry due to washing/spillages etc. through settling tank after neutralizing.

3. In the industry, 4.0 tones of coal per day is used as fuel in the three furnaces set up for heating the raw material. The height of the chimney associated with the furnaces is about 30 m from the ground level, but no other air pollution control plant has been established, nor is the arrangement of port hole and platform established for monitoring the chimney. Boiler is installed in the industry, in which 4.0 tones of rice husk is used as fuel per day. For air pollution control system, 25 m high system with cyclone dust collector is installed. Proper system for stack monitoring is not established.

4. According to the reported production capacity in the industry, about 5.0 tons/day of chrome based hazardous solid waste is generated, for which a permanent tank has been set up by the industry in the premises itself for temporary storage, in which partial waste was found filled. The solid waste generated by the industry has been disposed off on the surrounding areas and vacant land lying in front of the industry, but at present it has been informed of disposing the waste at the Common Facility Centre located at Kumbhi has not been developed according to the report submitted and the waste has been dumped in the temporary pit. However, at some places, waste has been dumped by putting polythene sheets and foundation work has been done for fencing pillars around the allotted land, in which about 10 inches long piece of iron angle has been accumulated. The development work of the said site is being done by the Kanpur Pollution Control Committee. According to the Chairman of the committee, an angle poster was installed all around for fencing, but all the angles have been cut from the foundation by thieves. At present, the industry is not authorized under the Hazardous Rules, 1989 as amended in 2003. Due to non-safe disposal of hazardous solid waste, there is every possibility of contamination of ground water of nearby areas.

The above inspection report is submitted for kind perusal and for necessary legal action."

(English translation by Tribunal)

67. Inspection report dated 13.08.2004 (p/450 of paper book): This report is submitted by a joint Committee comprising Mr. K.K. Sharma, Chief Environment Engineer (Circle-2) and Mr. P.C. Sharma, Scientific Officer stating that appellant unit was inspected on 12.08.2004 when it was found running the unit producing BCS by using raw material i.e., chromite ore, chrome ash, caustic and sulphuric acid. The report further said that there is a pucca tank for temporary storage of hazardous waste but only partial dumping was found in the said tank. Hazardous waste was dumped in the nearby area and in the open space near road i.e., outside the factory premises which was liable to cause contamination of ground water. The extract of the report is reproduced as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"Inspection of Basic Chrome Sulfate production units Heilger Chemicals, M/s. Cerullian Chemicals, M/s. Chandni Chemicals and M/s. Waris Chemical located in Rania, Kanpur Dehat was done on 12.8.04, by undersigned and Mr. Pramod Mishra, Regional Officer, Kanpur along with Dr. P.C. Sharma, Scientific Officer. Industries were found to be in production at the time of inspection.

Basic chrome sulphate is produced by industries using chromite ore, chrome ash, caustic, sulfuric acid as the main raw material.

Hazardous solid waste containing chromium is generated in the industries, for which a concrete tank has been constructed in the factory premises for temporary storage, in which partially hazardous waste was found. Hazardous waste is dumped in the surrounding areas by the industries. The disposal of hazardous waste is being done in the open space around the road due to which there is a strong possibility of contamination of ground water.

The said industries were earlier given conditional authorization for a period of one month for the purpose that these industries will dispose of their hazardous waste at the hazardous waste site being developed by "M/s. Kanpur Pollution Control Committee" at Kumbhi, Kanpur Dehat, but at present, no proper action has been taken by the said industries in this regard. The hazardous waste disposal site at Kumbhi, Kanpur Dehat was also inspected. Hazardous waste has been disposed of at the said site without any proper development work. Hazardous solid waste has been collected by laying polythene on the ground at one place, but the said polythene was also found torn at many places, as a result of which due to rain etc., there is a strong possibility of contamination of ground water by excessive surface run off. In the said circumstances, it is recommended to take action against the above mentioned industries under the Environment Protection Act, 1986."

(English translation by Tribunal)

68. Letter dated 16.10.2004 (p/487 of paper book): This was communicated by RO UPPCB to appellant under Section 21/22 of Air Act, 1981 stating that appellant is running the unit in violation of Air act, 1981 and, therefore, liable for appropriate action under the said Act. Contents of the letter reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"The inspection of your unit on the above subject was done by the authorized officers of the Board on 12-8-2004. During inspection, it was found that proper air pollution control has not been implemented in your unit to control the emission of pollutant gas as per the Board's standards and only chimney has been installed on which sampling port and platform have not been installed.

It is worth mentioning that the polluted emissions generated by the furnace have adverse effects on the surrounding environment and the health of the public and the ambient air quality is getting polluted. Further industrial operation being carried on by you without complying with the provisions of section of 21/22 of the Air Act 1981 which is open violation of the said provisions of Air Act 1981 is an punishable offence.

Therefore, it is directed that within one week from the receipt of the letter, for air pollution control submit proper proposal, and ensure compliance of section 21/22 of the Air Act 1981, otherwise we will be bounded to take legal action against you whose entire responsibility will be yours."

(English translation by Tribunal)

69. Inspection dated 09.06.2006 (p/486 of paper book): This inspection was made by a Committee comprising Shri U.C. Verma, Assistant Environment Engineer and Shri B.K. Singh, Junior Engineer who found a pucca tank made for temporary storage of hazardous waste completely empty though unit was found closed. The content of the report reads as under:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

"Inspection of above industry was done by the undersigned on 09.06.06, at the time of inspection Mr. K.C. Aggarwal - Director - M/s. Hilger Chem Pvt. Ltd., Mr. Sushil Chowdhary - Authorized Representative Unikam India Pvt. Ltd., Mr. Anil Khanna - Director - Khanna Vivek P Chemicals Pvt. Ltd., Mr. Sanjay Chhabra - Director, M/s. Kalina Chemicals Pvt. were present.

(1) Above said industry is closed in compliance of Board headquarter's detention order number F51339/C-2/HaZ/K-174/05 dated 6.10.05.

(2) No production work has been found in the industry.

(3) The plants established for Basic Chrome Sulphate unit in the industry complex have been sifted (transferred) in the complex itself and work is being done for a new textile processing unit in a part of it. Inability has been expressed by the employee in giving details of the said present change. Yet no information has been given by industry representative about this plan to Regional Office, neither application for obtaining No Objection Certificate has been given.

(4) The tank set up for temporary storage of hazardous waste has been found completely empty.

(5) The condition of complied hazardous waste at Khanchandpur, Raniya has been seen as before. Security arrangements were felt at zero level.

Kindly submitted for information and necessary action."

(English translation by Tribunal)

Objections of appellant filed on 18.08.2022 to the Report dated 28.07.2022:

70. Since these objections have been pressed and argued before Tribunal, we find it appropriate to reproduce the same as under:

"2. It is relevant to note that even before preparation/filing of the Report dt. 28.07.2022, the UPPCB had issued a Demand Notice dt. 14.04.2022, assessing Appellant's liability as Rs. 44,34,53,042 on the basis of a deemed contribution of chromium waste of 9854.512 MT. Appellant has already filed IA No. 130/2022 on 23.05.2022 in the captioned appeal before this Hon'ble Tribunal, challenging the said notice.

3. The Report dt. 28.07.2022 filed by the UPPCB appears to be by way of afterthought considering that UPPCB had already issued Demand Notice dt. 14.04.2022 without any scientific basis and in blatant violation of this Hon'ble Tribunal's Order dt. 12.11.2021. The Report dt. 28.07.2022 deserves to be rejected on this preliminary ground. Without prejudice, and for the sake of completeness, the Appellant has however furnished the present objections, dealing with the merits of the Report dt. 28.07.2022.

4. The UPPCB's Report dated 28.07.2022 contains the following findings:

A. Assessment of contribution of chromium waste is based on the "production capacity of the industry".

B. Pursuant to this Hon'ble Tribunal's Order dt. 12.11.2021, the replies of four of the noticees, i.e., Khanna Vivek Chemical Pvt. Ltd. Unichem India, IGS Chemicals Pvt. Ltd., Rahman Industries Ltd., were found satisfactory and accordingly, the proceedings against these units were revoked.

C. None of the appellants before the Hon'ble NGT have furnished record of Form-1 and Form 13. The inspection report of Regional Officer, Kanpur Dehat/Kanpur Nagar of relevant period shows that the concerned industries have time and again, thrown their generated hazardous waste unscientifically outside their industry premises.

D. Therefore, the concerned industries were responsible for the dumping of hazardous waste and their liability is to be apportioned as per production and operation period.

5. On this basis, the UPPCB has entered the following conclusion against the Appellant herein:

Name & address of industry:		M/s Waris Chemicals Pvt. Ltd. Khanchanrpur, Rania, Kanpur Dehat
Production capacity (MTD):		4
Operational Period:		1994 to Oct 2005 NOC 05.9.94 (134 months)
Assessed quantity of dumped Chromium waste as per percentage of production (MT):		About 18.299 percent of total waste on the basis of production capacity (Chromium Waste 11329.512 M.T.)
		About 1475 M.T. Chromium Waste was found stored in the industry premises out of which 111.8 MT is generated by M/s. G.S. Chemcial Pvt. Ltd.
		From the above facts, it is evident that the industry has thrown 984.512 M.T. of Chromium Waste in an illegal manner.
Revised Assessed quantity of dumped Chromium waste after assessment of stored quantity in the premises (M.T.):		11329.512-	1475=9854.512
Revised Compensation	Environmental	Rs.44,34,53,042

6. The aforesaid findings and conclusions contained in UPPCB's Report dt. 28.07.2022, are whimsical, capricious, and arbitrary. In the succeeding paragraphs, Appellant sets out its objections to the report.

A. Whimsical fluctuating assessments

7. As per the Order dt. 28.05.2020 (originally impugned in appeal), the UPPCB declared that the Appellant was responsible for dumping 10372.9 MT and assessed liability thereon as Rs. 46,67,80,837. The said assessment was stayed by this Hon'ble Tribunal on 04.01.2021 and the UPPCB thereafter gave Report dt. 30.09.2021 stating that the Appellant had dumped 7519.382 MT of chromium waste and must pay Rs. 33,83,27,196. Even this assessment was found faulty, as evident from this Hon'ble Tribunal's Order dt. 12.11.2021. Now, in the third instance, the UPPCB's Report dt. 28.07.2022 has come out with the story that the Appellant is responsible for dumping 9854.512 MT of chromium waste and liable to pay Rs. 44,34,53,042. For ease of reference, the figures are tabulated below:

Order dt.28.05.2020	Report dt.30.09.2021	Report dt.28.07.2022
10372.9 MT	7519.382MT	9854.512MT
Rs.46,67,80,837	Rs.33,83,27,196	Rs.44,34,53,042

8. In all three instances, there is no scientific or rational basis for calculation. The chromium dumps in question are in existence since 1976 (as recorded by the Hon'ble Tribunal in various judicial orders). Yet, the dump of 62225 metric ton has been sought to be divided only among a few units, including Appellant that operated only between 2001-2005 on the basis of "production capacity".

9. It is relevant that the Order dated 15.11.2019 as passed in OA Nos. 985-986/2019 speaks of chromium dumps and water pollution at two sites: (i) Rania, Village Khan Chandpur, District Kanpur Dehat (ii) Rakhi Mandi, Kanpur Nagar, which have been in existence since 1976. The said order records that the CPCB had filed a report on 30.10.2019 stating that both the contaminated sites located at Khan Chandpur and Rakhi Mandi require remediation of groundwater. The damages of Rs. 280 crores (approx.) was apparently assessed as estimated cost for remediation of both areas. However, UPPCB has apportioned the waste and assessment for liability only among the units in Kanpur Dehat in each instance.

10. UPPCB has failed to comply with the Order dt. 12.11.2021 of this Hon'ble Tribunal. No scientific reasons have been furnished for the determination of quantum of waste and consequent liability. The Report dt. 28.07.2022 has made an estimate on the basis of "production capacity", which methodology has not been approved hitherto. The same methodology was hitherto followed by the UPPCB in its Notice dt. 28.05.2020, Reply to Appeal dt. NIL November 2020, Report dt. 30.09.2021 filed in the captioned appeal. However, the said methodology was not approved by this Hon'ble Tribunal, as would be apparent from the Orders dt. 10.07.2020, 04.01.2021 and 12.11.2021.

B. Unexplained escalation in quantity

11. The total quantity of waste as assessed in the UPPCB Impugned Order dated 28.05.2020, Report dated 30.09.2021 an Report dt. 28.07.2022 is 62225 MT. On the contrary, in 2009, as per the intimation of UPPCB itself, the total waste was assessed as 45000 MT. True and Typed Copy of the UPPCB. Letter dated 01.04.2009 is annexed herewith as Annexure 'A'. Appellant had objected to the said communication categorically raising the plea that the dump was preexisting Appellant's operations. True Copy of the Letter dt. 10.07.2009 is annexed herewith as Annexure 'B'. The matter was not further actioned. It appears that between 2009 and 2019, the 45000 MT has gone up to 62225 MT as per UPPCB's own inspection. Indisputably, Appellant had shut down in 2005. Therefore, assuming but not conceding Appellant bore any responsibility, it could not be responsible for the escalation in quantity.

12. UPPCB has not disclosed the waste quantity as it stood in 2005. It appears that UPPCB has permitted other establishments/operators to continue with dumping activity beyond 2009 but affixed responsibility thereto to the appellants in the present batch of cases.

Arbitrary exclusions of favoured units

13. There were various other entities operating chromium-based units in the concerned area but the UPPCB has found some or the other reason to exempt or absolve such units of liability and conveniently accepted whatever explanation has been provided by other units which were issued show cause notices.

14. In the Report dt. 28.07.2022, the UPPCB has given a clean chit to Khanna Vivek Chemical Pvt. Ltd. Unichem India, IGS Chemicals Pvt. Ltd., Rahman Industries Ltd., accepting the explanation was furnished by them. However, none of the objections nor explanations of the appellants before this Hon'ble Tribunal have found favour with the UPPCB. The UPPCB's slanted and biased approach speaks for itself. The estimated figures (of waste and liability) are for mere convenience of the UPPCB whose only objective appears to be that the total Environmental Compensation of Rs. 280.01 Crores has to be divided up among some pre-determined target units (i.e., the Appellants before this Hon'ble Tribunal).

C. Failure to consider relevant facts pertaining to production

15. The Appellant had consumed limited quantity of chromium ore and generated only limited chromium waste which is nowhere close to the quantity alleged to be dumped. Along with the Objections dt. 08.11.2021 served on UPPCB and filed before this Hon'ble Tribunal in this captioned appeal, Appellant had submitted certain details regarding production, including total waste generated between 1997-2005: 1501.46875 MT (stored inside premises).True Copy of the Table of Waris Chemicals is annexed herewith as Annexure 'C'.

16. It is relevant that this Hon'ble Tribunal had itself taken cognizance of the objections filed, in the Order dt. 12.11.2021. However, the Objections dt. 08.11.2021 filed before this Hon'ble Tribunal have not been noticed, let alone considered by the UPPCB. Once again, this approach points to the biased and pre-determined mindset of the UPPCB.

D. Irrelevant documents furnished as "basis"

None of the documents filed with the Report dt. 28.07.2022 indicate the quantum of waste alleged to be dumped by the Appellant to be anywhere close to 9854.512MT. The barely legible documents filed (in Hindi) by UPPCB appear to pertain to a period prior to closure of Appellant's unit in 2005. As such, these documents nowhere support the UPPCB's conclusion as to responsibility of the Appellant in dumping to the extent of 9854.512MT.

17. The basis (i.e., adverse materials) on which the UPPCB has purported to arrive at the quantum of waste and liability have thus not been furnished. The documents furnished bear little or no nexus to the exercise required to be carried out pursuant to this Hon'ble Tribunal's Order dt. 12.11.2021.

E. Improper legal basis for calculation of damages

18. The Report dated 28.07.2022 has relied upon a formula prepared by the CPCP under the Hazardous and other Waste (Management and Transboundary Movement) Rules, 2016 being,

"Environmental Compensation (EC) = Q X ERF X R where 'Q' is observed quantity of waste; ERF is environmental risk factor and R is environmental compensation factor @ Rs. 30000."

19. This formula, as issued under the 2016 Rules, cannot retrospectively apply qua an alleged violation ending in 2005. Reliance is placed on Rule 1(2) of the 2016 which states that the Rules come into force on the date of their publication in the gazette (which is 04.04.2016). The 2016 Rules or guidelines issued thereunder, being subordinate legislation/executive instructions cannot carry retrospective effect for calculation of damages in respect of alleged dumping upto 2005. Of particular relevance is the 'R' factor taken @ Rs. 30000, which benchmark of 2016 would have likely been different if the formulation was to apply for 2005.

20. Assuming but not conceding that the 2016 formula can be applied, the 'Q' factor (quantity of waste) has been incorrectly assessed, as a matter of fact, for the reasons already mentioned above. Going by UPPCB's own Letter of 01.04.2009, the maximum applicable penalty was only Rs. 1.125 crores on the basis total quantity being 45000 MT and the disposal charge being Rs. 1500 per tonne.

F. Laches

21. The entire exercise is highly belated and hit by laches. The Appellant is non-functional for a very long time and neither the resources nor materials to defend itself. The very process of requiring the Appellant to defend itself against alleged acts/omissions which relate back to two decades is untenable, hit by delay and laches.

22. The exercise undertaken by the UPPCB was quasi-judicial in nature. It has resulted in a serious civil liability. Even if there is no express provision of limitation for initiation of proceedings of compensation for environmental damage, the proceedings cannot be launched after 15 years of closure of the unit and in respect of dumps in existence since 1976 (well before the incorporation/existence of Appellant). Such proceedings, being quasi-judicial in nature, ought to have been initiated within a reasonable time as held by the Hon'ble Supreme Court in the following cases:

(a) Shalimar Works Ltd. v. Workmen, AIR 1959 SC 1217 [LQ/SC/1959/108] , which holds that though the Industrial Disputes Act, 1947, does not prescribe limitation for reference of disputes, nonetheless disputes ought to be referred to the tribunal within a reasonable time-frame. Such interpretation was given thought Section 10 of the Industrial Disputes Act in fact permits reference of industrial dispute "at any time". This position reiterated in Prabhakar v. Sericulture Department, (2015) 15 SCC 1 [LQ/SC/2015/1170] .

(b) Chhedi Lal Yadav v. Hari Kishore Yadav, (2018) 12 SCC 527 [LQ/SC/2017/647] . A prayer for repossession of land was filed by farmers after a lapse of 24 years in terms of Bihar Kosi Area (Restoration of Lands to Raiyats) Act, 1951. It was contended that the statute a welfare legislation and ought to be read so as to benefit the Raiyat farmers, in matters of delay. It was contended that there was no provision of limitation regarding suo moto exercise of power by the authority for restoration of land. The Supreme Court rejected the contention on the ground that even if there is no limitation against suo moto exercise of power, there cannot be any exercise of power after a long lapse of time. Similar position has been enunciated in Collector v. D. Narsing Rao,(2015) 3 SCC 695 [LQ/SC/2015/53] .

23. Though the Interim Order dated 04.01.2021 of this Hon'ble Tribunal has expressed a prima facie view against the plea of limitation (on the ground that there is absolute liability under the "polluter pays" principle), it is respectfully submitted that even the doctrine of "absolute liability" premised on the "polluter pays" principle does not enable the Pollution Control Board to initiate proceedings for imposition of penalty beyond a reasonable time-frame.

24. For example, Section 15 of the NGT Act permits the apex authority in the field of environmental law enforcement - i.e., this Hon'ble Tribunal, to entertain applications for compensation within 5 years of the date of cause of action, as first accrued. This shows that there is no legislative intent to permit an open-ended and indefinite period for assessment/demand of compensation on the doctrine of absolute liability. When such is the case for the apex body, it ought not to be implied that the State Pollution Control Board enjoys unlimited power to impose and assess damages for any length of time.

25. In the interim order dated 04.01.2021, the Hon'ble Tribunal relied on the judgement in Hindustan Times v. UOI, (1998) 2 SCC 242 [LQ/SC/1998/11] to observe that limitation is not applicable to the case. However, the aforementioned precedent also takes note of the principle that the defence of delay can be availed where prejudice is pleaded and proved.

26. In the present case, prejudice has been consistently pleaded both before the authority (UPPCB) and this Hon'ble Tribunal. The Appellant's unit was shut in 2005. There was no production for 15+ years. The impugned proceedings of the UPPCB seeks to penalise Appellant for alleged dumping of waste from 1976 for which the UPPCB is not able to produce any record other than rely on hypothetical "production capacity". Petitioner was not even in existence from 1976.

27. The dumps in question admittedly existed since 1976 while the Appellant operated only between 2001-2005. UPPCB has failed to disclose as to the quantity and extent of the dumps as they existed, prior to the operation of the Appellant. As the matter is very stale and production has long ceased, Appellant has found it extremely difficult to make its defence on facts. Appellant has been unable to marshall contemporaneous evidence of wrongdoing of other persons/third parties who may have been the actually entities responsible for the dumping in the areas concerned. Such prejudice is irreversible.

28. Appellant ought not to be visited with adverse civil consequences in respect of the land/unit in 2022 in respect of alleged dumping between 2001-2005. Appellant relies on the principle enunciated in State of Punjab v. Chaman Lal Goyal, (1995) 2 SCC 570 [LQ/SC/1995/165] .

29. Furthermore, if any reliance is to be placed on the documents furnished with Report dt. 28.07.2022, UPPCB was fully aware more than 15 years ago, of the alleged dumping, if any. It was thus capable of taking appropriate measures against the erring units at the relevant time that the alleged dumping was detected. It is unlawful and belated for UPPCB to levy environmental compensation 15 years after discovery of alleged violation.

30. Appellant reiterates all other grounds and submissions hitherto made in the appeal, Objections dt. 08.11.2021 filed before this Hon'ble Tribunal to UPPCB Report dt. 30.09.2021 and IA No. 130/2022 filed in captioned appeal respect of UPPCB's Demand Notice dt. 14.04.2022.

31. Appellant respectfully submits that the Appeal may accordingly be allowed and the Impugned Order dt. 28.05.2020, Report dated 30.09.2021, Order dt. 14.04.2022 and Report dt. 28.07.2022 set aside, insofar as the Appellant is concerned."

71. Appellant has appended three annexures to the objections i.e., copy of letter dated 01.04.2009 as annexure A, letter dated 10.07.2009 sent by five industries including appellant to Member Secretary, CPCB Delhi as annexure-B and copy of chart giving details of production of BCS and waste etc. from 1997-98 to 2005-06 which we have already referred above having been filed along with the earlier objection/protest letter of appellant.

ARGUMENTS:

72. Learned Counsel for appellant contended that the unit was closed long back, i.e., since 2005 and after almost 14 years, imposition of liability on the alleged dumping of Chromium waste and assessment of environmental compensation is wholly illegal and barred by limitation. Further, the computation of compensation is arbitrary, imaginary, based on presumption, deemed attribution and is not substantiated by any material; RO UPPCB has computed compensation on the basis of proportional quantity of waste lying at the questioned site since 1976, ignoring the fact that appellant unit commenced its production only in 1995 and stopped in 2005, therefore, apportionment/proportional liability passed upon appellant is patently illegal; compensation has also been determined on the basis of formula prescribed in HOWMTM Rules, 2016 though the aforesaid Rules having been published in Gazette of India, Extraordinary, dated 04.04.2016 and enforced from the date of publication in official Gazette, would not apply to something which transpired between 1995 to 2005; in other words, HOWMTM Rules, 2016 could not have been applied retrospectively in order to determine environmental compensation, liable to be paid by appellant as no retrospective application has been permitted or provided to the said Rules. Learned Counsel for appellant said that appellant did not store or dumped hazardous waste containing Chromium at the questioned site, therefore, no liability could not have been imposed upon it and implication of appellant to hold guilty of violating environmental norms and the provisions of Rules, HWMH Rules, 1989 read with EP Act, 1986 is clearly misconceived and incorrect.

73. On the contrary, Learned Counsel for UPPCB said that the ultimate environmental compensation determined vide report dated 28.07.2022 is based on the production capacity, operational period and assessed quantity of dumped Chromium waste as per percentage of production, therefore, actually based on true facts where against appellant could not produce any material to contradict, hence, no interference is called for. Shri Pradeep Mishra, Learned Counsel appearing for UPPCB strongly supported environmental compensation and liability imposed upon appellant and contended that admittedly appellant was engaged in manufacturing of BCS which resulted in generating hazardous waste containing Chromium and the same having not been disposed of scientifically as required by HWMH Rules, 1989, appellant is liable for payment of compensation by applying the principle of 'Polluter Pays' and since no otherwise material has been placed by appellant before Tribunal, the assessment of compensation by UPPCB is just valid and in accordance with law, hence warrants no interference.

74. It is also argued by Shri Pradeep Mishra that in the impugned order, reference has been made to HOWMTM Rules, 2016 which is apparently incorrect but that by itself will not vitiate the order in as much as mere mention of wrong provision will not vitiate the order if otherwise the power is vested in the authority concerned. He argued that in place of HOWMTM Rules, 2016, the reference may be made to HWMH Rules, 1989.

ISSUES:

75. From the arguments advanced by Learned Counsel for the parties as also from material on record and the rival submissions, in our view, following issues have arisen for adjudication by this Tribunal:

(I) Whether appellant commenced production in its unit in violation of the provisions of Water Act 1974, Air Act 1981 and HWMH Rules, 1989

(II) Whether appellant has dumped hazardous waste comprising chromium on road side or other open place without any lawful authority and thus violated provisions of HWMH Rules, 1989 and also Water Act 1974 and Air Act 1981 by contaminating ground water, soil and air

(III) Whether dumping of waste containing chromium inside the factory premises, if correct, as claimed by appellant, was lawful and valid in the light of HWMH Rules 1989.

(IV) If questions I, II and/or II are/is answered against appellant, what is the quantity of hazardous waste comprising Chromium which can be held dumped by appellant illegally and what amount of environmental compensation, appellant is liable to pay, applying principle of 'Polluter Pays'

(V) Whether imposition or demand of environmental compensation by UPPCB is within limitation or is otherwise not chargeable, by application of principle of laches or unreasonable delay

(VI) Whether determination of environmental compensation by UPPCB against appellant is just valid or liable to be revoked or modified and if so, to what extent

(VII) Whether appellant has violated any other law and if so, further action required to be taken

(VIII) Whether appellant is entitled for any relief

ISSUE I:

76. We proceed to consider, first, issue I in the light of relevant law, the facts available on record and also the arguments advanced by Learned Counsel for the parties.

77. It is admitted case of appellant that it commenced production in February 1995 to November 2005 and unit was closed on 25.11.2005 due to non-compliance of HWMH Rules, 1989. UPPCB in its reply has categorically stated in reply to para 4(ii) and 4(iii) that appellant commenced production without having Consent to Operate (hereinafter referred to as 'CTO') and authorisation under HWMH Rules, 1989. To this reply and stand taken by UPPCB, appellant has not said anything and has not placed any document to show that it commenced production of the unit after obtaining CTO under Water Act, 1974 and Air Act 1981 and authorisation under HWMH Rules, 1989. UPPCB has also relied on notices dated 15.04.2000 and 01.05.2000 issued to appellant in respect of non-compliance of the Statutory provisions relating to consent and authorisation and there is no denial on the part of appellant to the said stand taken by UPPCB.

78. Further, along with report dated 28.07.2022, documents have been filed which we have already discussed above. The said documents also show that the appellant did not have requisite consent and authorisation but continued to run its industry in violation of mandatory requirement of environmental laws. We are thus satisfied that from the very beginning, Appellant had violated environmental laws and norms and commenced operation of unit without obtaining CTO and also without obtaining any authorisation for disposal of its hazardous waste under the provisions of HWMH Rules, 1989, and continued to run its unit in such violations.

79. At this stage, we may also examine HWMH Rules, 1989 to demonstrate a few more apparent violations by the appellant.

80. HWMH Rules, 1989 were published in Gazette of India, Extraordinary dated 28.07.1989 and came into force on the date of publication in the official Gazette, vide Rule 1 of the said Rules.

81. Rule 2 talks of application of HWMH Rules, 1989 and says that Rules shall apply to handling of hazardous waste as specified in the Schedule.

82. Rule 3 contains definition of various terms used in HWMH Rules, 1989. For the present case, the definition of terms 'authorisation', 'authorised person', 'hazardous wastes', hazardous wastes site' are relevant and reproduced below as under:

"(c) "authorisation" means permission for collection, reception, treatment, transport, storage and disposal of hazardous wastes, granted by the competent authority in Form 2;

(d) "authorised person" means a person or an organization authorised by the competent authority to collect, treat, transport, store or dispose of hazardous wastes in accordance with the guidelines to be issued by the competent authority from time to time;

(i) "hazardous wastes" means categories of wastes specified in the Schedule;

(j) "hazardous wastes site" means a place for collection, reception, treatment, storage and disposal of hazardous wastes which has been duly approved by the competent authority;"

83. Rule 4 puts responsibility upon the occupier generating hazardous waste in quantity equal to or exceeding the limits in column 3 of the Schedule to take all practical steps to ensure that such wastes are properly handled and disposed of without any adverse effects which may result from such wastes and the occupier shall also be responsible for proper collection, reception, treatment, storage and disposal of the wastes either himself or through the operator of facility.

84. Rule 5 talks of authorisation for handling hazardous wastes and also provided procedure for such authorization. Sub-rule 2 of Rule 5 says that every occupier generating hazardous wastes and having a facility for collection, reception, treatment, transport, storage and disposal of such wastes shall make an application in Form 1 to the State PCB for the grant of authorization for any of the above activities.

85. Rule 7 talks of packaging, labelling and transport of hazardous wastes in a manner suitable for storage and transport.

86. Rule 9 talks of records and returns to be maintained by occupier and operator of a facility and reads as under:

"9. Records and returns

(1) The occupier generating hazardous waste and operator of a facility for collection, reception, treatment, transport, storage and disposal of hazardous waste shall maintain records of such operations in Form 3.

(2) The occupier and operator of a facility shall send annual returns to the 2 [State Pollution Control Board or Committee] in Form 4."

87. It is not disputed before us that wastes comprising Chromium is covered by waste category 3 in Schedule of HWMH Rules, 1989 since chromium is a metal mentioned in the Schedule. The relevant entry reads as under:

SCHEDULE: CATEGORIES OF HAZARDOUS WASTES [Rule 3(i), 3(n) and 4]

88. Thus, from the above, it is evident that responsibility of occupier for handling of wastes is provided under Rule 4; duties of occupier are prescribed by Rule 4(A) (inserted vide amendment Rules notified vide notification dated 06.01.2000); procedure for grant of authorisation for handling hazardous wastes is provided in Rule 5 and packaging, labelling and transport of hazardous wastes is dealt with vide Rule 7; procedure for identification of disposal sites for establishing facility for treatment, storage and disposal of hazardous waste is provided Rule 8; and Rule 9 talks of record and returns which are to be maintained by occupier generating hazardous wastes and operator of a facility for collection, reception, treatment, transport, storage and disposal of hazardous waste.

89. From the own admission of appellant, it commenced production in February 1995 and on that date or immediately thereafter, it did not obtain either CTO under Water Act 1974 and Air Act 1981 or authorization in the manner prescribed under Rule 5 of HWMH Rules, 1989. It is also not the case of appellant that it maintained any record as contemplated under Rule 9 of HWMH Rules, 1989. Hence, we answer Issue I accordingly in affirmation and hold that appellant commenced it operations in utter violation of the provisions of Water Act 1974, Air Act 1981 and HWMH Rules, 1989 read with EP Act, 1986.

90. Issue I is answered affirmatively i.e., against appellant.

ISSUES II and III:

91. In the memo of appeal, it is stated by appellant that it did not dump any waste outside the factory premises but the same was stored in the lined shed constructed in the factory premises. We find that the statement of appellant is not wholly correct. The fact is that appellant had not only dumped some quantity of hazardous waste inside the factory premises but also dumped some quantity of hazardous waste outside the factory premises.

92. Joint Committee submitted report dated 30.09.2021 to this Tribunal and has stated in para 3 thereof that pursuant to Tribunal's order dated 04.01.2021, UPPCB constituted a Committee for hearing appellants. Oral hearing was held on 16.03.2021. On the directions of Committee, RO UPPCB, Kanpur Dehat made site inspection of all the six units namely, M/s. Cerulean Chemicals Pvt. Ltd., M/s. Chandni Chemicals Pvt. Ltd., M/s. Hilgers Chemicals Pvt. Ltd., M/s. Waris Chemicals Pvt. Ltd., M/s. Amelia Chemicals Pvt. Ltd. and M/s. Rukmini Chemicals Pvt. Ltd. and submitted report to the Committee on 13.07.2021. In the said inspection, it found chromium waste lying in the premises of only two industries namely M/s. Waris Chemicals Pvt. Ltd. i.e., the appellant, and M/s. Hilgers Chemicals Pvt. Ltd. At the premises of appellant, RO UPPCB found 1475 MT hazardous waste stored in the factory premises. The relevant extract of report dated 13.07.2021 is reproduced as under:

"3. That it is submitted that in compliance of Hon'ble NGT order dated 04.01.2021, U.P. Pollution Control Board has constituted a committee for hearing the appellants. U.P. Pollution Control Board has again given due opportunity to the appellants and the hearing was conducted on 16.03.2021. The Committee considered the representation of industries and report was sought from Regional Officer, Kanpur Dehat. Regional Officer, Kanpur Dehat has sent the site inspection reports of 06 industries on 13-07-2021. During inspection the chromium waste 1475 MT and 3177 MT was found stored in M/s. Waris Chemicals Pvt. Ltd., Khanchandpur, Rania, Kanpur Dehat and M/s. Hilger Chem Pt Ltd., Village-Chiraura raipur, Kanpur Dehat respectively."

93. This part of report has not been objected or contradicted by appellant, either by pleading otherwise or by placing any material before us. Therefore, fact, at least to this extent stand proved that appellant stored 1475 MT hazardous waste at its premises. However, for this dumping, no authorization under HWMH Rules 1989 was obtained, hence it was illegal and in violation of above rules.

94. Now the question is whether it also dumped hazardous waste containing chromium outside the factory premises since this fact is being denied by appellant in various protest letters and also in the memo of appeal. Here, we find admission on the part of appellant itself at the very first opportunity that when he filed its protest letter dated 09.12.2019 (annexure A/13 at p/139 of paper book), opposing notice dated 24.10.2019.

95. On page 141, appellant has said that it commenced it production in February 1995, after having permission for operation of chromium based chemical factory at Umran, Rania, Kanpur Dehat and stopped industrial operation on 25.11.2005. Further, capacity of appellant's unit was 50 MT/month of production of BCS and it generated about 12.50 MT waste per month. It had a pucca in-house dump wherein it stored waste products. Thereafter, on p/142 of paper book, appellant has said as under:

"It is stated that once the in-house pucca dump situated within the factory premises was full, the company along with several other chromium-based factories approached the Uttar Pradesh Pollution Control Board for the purposes of arranging for the accumulated waste disposal and providing alternate site for dumping of the waste produce."

96. Thus, appellant has admitted that its in-house dump site/pucca tank was full whereafter it approached UPPCB to provide alternate site which they did not provide. But it has not stated clearly as to where it thereafter dumped its hazardous waste containing chromium when the inside arrangement was full which shows that the appellant after filling the inside tank, dumped waste outside the factory premises.

97. The above position is also fortified from various documents filed by Joint Committee along with its report dated 28.07.2022 which we have discussed above.

98. The letters dated 04.09.2003 (page 479) and 16.10.2004 (page 487); and inspection reports dated 21.08.2003 (page 491), 02.09.2003 (page 480), 07.04.2004 (page 492), 20.04.2004 (page 483), 26.04.2004 (page 489), 17.05.2004 (page 482), 12.06.2004 (page 488) and 09.06.2006 (page 486) clearly show that the officials of UPPCB found appellant dumping hazardous waste outside the factory premises consistently and repeated warnings and instructions were given against such dumping but appellant did not refrain from dumping of waste outside the factory premises.

99. We may also place on record that above documents are not disputed by appellant as such. What he has said about the said documents in his objections dated 18.08.2022 filed to the joint Committee report dated 28.07.2022, with regard to documents, is as under:

"D. Irrelevant documents furnished as "basis"

None of the documents filed with the Report dt. 28.07.2022 indicate the quantum of waste alleged to be dumped by the Appellant to be anywhere close to 9854.512 MT. The barely legible documents filed (in Hindi) by UPPCB appear to pertain to a period prior to closure of Appellant's unit in 2005. As such, these documents nowhere support the UPPCB's conclusion as to responsibility of the Appellant in dumping to the extent of 9854.512 MT.

17. The basis (i.e., adverse materials) on which the UPPCB has purported to arrive at the quantum of waste and liability have thus not been furnished. The documents furnished bear little or no nexus to the exercise required to be carried out pursuant to this Hon'ble Tribunal's Order dt. 12.11.2021."

100. The stand of appellant is that the documents are irrelevant and do not show the quantity of the waste dumped outside the premises but about the documents as such, neither their genuinity nor their correctness is disputed. Even contents of the said documents are not disputed. We, therefore, have no reason but to believe the said documents and the content thereof. Accordingly, we answer Issue II against the appellant holding that appellant was dumping waste outside the factory premises though partially, he also dumped some waste inside the factory premises. The quantity of waste found by the said Committee in the report dated 13.07.2021, lying inside the factory premises is 1475 MT.

101. Issues II and III are answered accordingly holding that appellant was illegally dumping hazardous waste containing chromium not only inside the factory premises but also outside of the factory premises.

ISSUE IV:

102. In the present appeal, quantum of waste and environmental compensation computed by RO UPPCB has been assailed.

103. The compensation has been determined holding appellant liable to pay such compensation applying principle of 'Polluter Pays'. This principle was recognized as part of environmental law in India in Indian Council for Enviro-Legal Action vs. Union of India, (1996)3 SCC 212 [LQ/SC/1994/251] . Certain industries producing assets were dumping their waste. Even untreated waste water was allowed to flow freely polluting atmosphere and sub-terrain supply of water which ultimately caused darkening and dirtiness of wells and the streams water rendering it unfit for human consumption. Certain environmentalists' organizations broadly alleging severe damage to villager's health, filed a Writ petition as PIL in 1989 before Supreme Court. By that time, some of the units were already closed. Referring to Article 48-A in Director Principle of State Policy and 51-A in the Fundamental duties of citizens, Supreme Court observed that said provisions say that State shall endeavor to protect and improve environment and to safeguard the forest and wildlife of the country. One of the fundamental duties of citizen says to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creature. Proponent has established to operate its commercial unit contrary to law flouting norms provided by law, Statutory Regulator is bound to act and if it fails, a judicial forum can direct it to act in accordance with law. Referring to Oleum Gas leak case, i.e., M.C. Mehta vs. Union of India, (1987)1 SCC 395 [LQ/SC/1971/668] , Court observed in para 58 that the constitution bench held that enterprise must be held strictly liable for causing such harm as a part of social cost of carrying on the hazardous or inherently dangerous activity. Hazardous or inherently harmful activities for private profits can be tolerated only on the condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of carrying on of such hazardous or inherently dangerous activity, regardless of whether it is carried on carefully or not. Court also referred to its earlier decision in Indian Council for Enviro Legal action vs. Union of India (1995) 3 SCC 77, [LQ/SC/1995/351] wherein PCB identified about 22 industries responsible for causing pollution by discharge of their effluent and a direction was issued by Court observing that they were responsible to compensate to farmers. It was the duty of State Government to ensure that this amount was recovered from the industries and paid to the farmers. In para 67 of the judgment, Court said that the question of liability of respondent units to defray the costs of remedial measures can also be looked into from another angle which has now come to be accepted universally as a sound principle, for example, 'Polluter Pays' principle. On this aspect, Court further observed as under:

"67.... The Polluter Pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The 'Polluter Pays' principle was promoted by the Organization for Economic Cooperation and Development (OECD) during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialized society. Since then there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.

Despite the difficulties inherent in defining the principle, the European Community accepted it as a fundamental part of its strategy on environmental matters, and it has been one of the underlying principles of the four Community Action Programmes on the Environment. The current Fourth Action Programme ([1987] OJC 328/1) makes it clear that 'the cost of preventing and eliminating nuisances must in principle be borne by the polluter', and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the environment which were introduced by the Single European Act of 1986. Article 130-R(2) of the Treaty states that environmental considerations are to play a part in all the policies of the Community, and that action is to be based on three principles: the need for preventative action; the need for environmental damage to be rectified at source; and that the polluter should pay."

104. Court further said that according to the above principle of 'Polluter Pays', responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 of EP Act, 1986 empower Central Government to give directions and take measures for giving effect to this principle. It further said as under:

"...In all the circumstances of the case, we think it appropriate that the task of determining the amount required for carrying out the remedial measures, its recovery/realisation and the task of undertaking the remedial measures is placed upon the Central Government in the light of the provisions of the Environment [Protection] Act, 1986. It is, of course, open to the Central Government to take the help and assistance of State Government, R.P.C.B. or such other agency or authority, as they think fit."

105. The above principle has been followed in Vellore Citizen Welfare Forum vs. Union of India, 1996(5) SCC 647. In para 25, direction no. 2 reads as under:

2. The authority so constituted by the Central Government shall implement the "precautionary principle" and the "polluter pays" principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.

106. In Bittu Sehgal and Another vs Union of India & Others (2001)9 SCC 181 [LQ/SC/1996/1833] , referring the earlier judgments, Supreme Court has said that precautionary principle and 'Polluter Pays' principle have been accepted as part of the law of the land.

107. In Research Foundation for Science vs. Union of India & Ors.,(2005)13 SCC 186 [LQ/SC/2016/107] , in para 26 and 29, Court, on 'Polluter Pays' Principle, has said as under:

26. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter-pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation.

29. The polluter-pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case.

108. In Karnataka Industrial Areas Development Board vs. C. Kenchappa & Others (2006)6 SCC 371 [LQ/SC/1995/1015] , principle of 'Polluter Pays' has been explained in detail referring to the earlier judgments in Indian Council for Enviro-Legal Action vs. Union of India (supra) and Vellore Citizen Welfare Forum (supra).

109. Applying the above principle of 'Polluter Pays', it thus cannot be doubted that the appellant, having dumped hazardous waste containing chromium (Cr VI) at the questioned site and thereby causing damage to environment and also affecting local people's health, is liable for restoration of the damage caused to environment and to bear its cost. Appellant thus has to pay environmental compensation.

110. Now the question is, what should be that cost or environmental compensation. In other words, how much environmental compensation is payable by appellant. What are the norms to compute environmental compensation is the moot question.

111. Environmental compensation shall have the element of damage to environment, cost of remediation, deterrent factor and other relevant aspects. Issue of determination of environmental compensation is significant in the sense that it should be proportionate to or bears reasonable nexus with the environmental damage and its remediation/restoration.

112. Taking into consideration multifarious situations relating to violation of environmental laws vis-à-vis different proponents, nature of cases involving violation of environmental laws can be categorized as under:

(i) Where Project/Activities are carried out without obtaining requisite statutory permissions/consents/clearances/NOC etc., affecting environment and ecology. For example, Forest Clearance; NOC for extraction and use of ground water; Environmental Clearance under Environment Impact Assessment Notification 2006; Consent under Water Act, 1974 and Air Act, 1981; Authorisation under Solid Waste Management Rules, wherever applicable, and similar requirements under other statutes.

(ii) Where proponents have violated conditions imposed under statutory Permissions, Consents, Clearances, NOC etc. affecting environment and ecology.

(iii) Where Proponents have carried out their activities causing damage to environment and ecology by not following standards/norms regarding cleanliness/pollution of air, water etc.

113. The above categories are further sub-divided, i.e., where the polluters/violators are corporate bodies/organisations/associations and group of the people, in contradistinction, to individuals; and another category, the individuals themselves responsible for such pollution.

114. Further category among above classification is, where, besides pollution of environment, proponents/violators action also affect the community at large regarding its source of livelihood, health etc.

115. The next relevant aspect is, whether damage to environment is irreversible, permanent or is capable of wholly or partially restoration/remediation.

116. Determination/computation/assessment of environmental compensation must, not only conform the requirement of restoration/remediation but should also take care of damage caused to the environment, to the community, if any, and should also be preventive, deterrent and to some extent, must have an element of "being punitive". The idea is not only for restoration/remediation or to mitigate damage/loss to environment, but also to discourage people/proponents from indulging in the activities or carrying out their affairs in such a manner so as to cause damage/loss to environment.

117. To impose appropriate 'environmental compensation' for causing harm to environment, besides other relevant factors as pointed out, one has to understand the kind and nature of 'Harmness cost'. This includes 'risk assessment'. The concept of risk assessment will include human 'health risk assessment' and 'ecological risk assessment'. U.S. Environmental Protection Agency has provided a guideline to understand harm caused to environment as well as people.

118. Human-health risk assessment comprised of three broad steps, namely, planning and problem formulation; effects and exposure assessment and risk categorization. The first part involves participation of stakeholders and others to get input; in the second aspect health effect of hazardous substances as well as likelihood and level of exposure to the pollutant are examined and the third step involves integration of effects and exposure assessment to determine risk.

119. Similarly, ecological risk assessment is an approach to determine risk of environmental harm by human activities. Here also we can find answer following three major steps, i.e., problem codification; analysis of exposure and risk characterization. First part encompasses identification of risk and what needs to be protected. Second step insists upon crystallization of factors that are exposed, degree to exposure and whether exposure is likely or not to cause adverse ecological effects. Third step comprised of two components, i.e., risk assessment and risk description.

120. In totality, problem is multi-fold and multi-angular. Solution is not straight but involves various shades and nuances and vary from case to case. Even Internationally, there is no thumb-rule to make assessment of damage and loss caused to environment due to activities carried out individually or collectively by the people, and for remediation/restoration. Different considerations are applicable and have been applied.

121. Nature is extremely precious. It is difficult to price elements of nature like light, oxygen (air), water in different forms like rain, snow, vapour etc. When nature is exploited beyond its carrying capacity, results are harmful and dangerous. People do not understand the value of what nature has given free. Recently in Covid-19 wave II, scarcity of oxygen proved its worth. In dreadful second phase of the above pandemic, any amount offered, in some cases, could not save life for want of oxygen. Further, damage to environment, sometimes do not reflect in individuals immediately and may take time but injury is there. In such cases, process of determination of compensation may be different.

122. In an article, 'the cost of pollution-Environmental Economics' by Linas Cekanavicius, 2011, it has been suggested, where commercial activities have been carried out without consent etc., and pollution standards have been violated, 'Total Pollution Cost' (hereinafter referred to as 'TPC') can be applied. It combines the cost of abatement of environment pollution and cost of pollution induced environmental damage. The formula comes to TPC(z)=AC(z)+ED(z), where z denotes the pollution level. Further, clean-up cost/remediation cost of pollution estimated to be incurred by authorities can also be used to determine environmental compensation. When there is collective violation, sometimes the issue arose about apportionment of cost. Where more than one violator is indulged, apportionment may not be equal since user's respective capacity to produce waste, contribution of different categories to overall costs etc. would be relevant. The element of economic benefit to company resulting from violation is also an important aspect to be considered, otherwise observations of Supreme Court that the amount of environmental compensation must be deterrent, will become obliterated. Article 14 of the Constitution says that unequal cannot be treated equally.

123. Determination/assessment/computation of environmental compensation cannot be arbitrary. It must be founded on some objective and intelligible considerations and criteria. Simultaneously, Supreme Court also said that its calculations must be based on a principle which is simple and can be applied easily. In other words, it can be said that wherever Court finds it appropriate, expert's assessment can be sought but sometimes experts also go by their own convictions and belief and fail to take into account judicial precedents which have advanced cause of environment by applying the principles of 'sustainable development', 'precautionary approach' and 'Polluter Pays' etc.

124. Clean-up cost or TPC, may be a relevant factor to evaluate damage, but in the diverse conditions as available in this Country, no single factor or formula may serve the purpose. Determination should be a quantitative estimation; the amount must be deterrent to polluter/violator and though there is some element of subjectivity but broadly assessment/computation must be founded on objective considerations. Appropriate compensation must be determined to cover not only the aspect of violation of law on the part of polluter/violator but also damage to the environment, its remediation/restoration, loss to the community at large and other relevant factors like deterrence, element of penalty etc.

125. In this case a formula prescribed in guidelines issued by CPCB referring HOWMTM Rules 2016 has been applied by RO UPPCB. In this regard we may notice herewith that Rules for handling, storage, management, etc. of hazardous waste were initially framed in 1989 which were superseded by Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 published vide MoEF notification dated 24.09.2008 in the Gazette of India, Extraordinary of the same date and again, Hazardous Waste Rules, 2008 were superseded by HOWMTM Rules, 2016. However, in the above Rules, there was no mechanism provided for determination/assessment of environmental compensation for violation of the aforesaid Rules. This was a serious gap and noticed by this Tribunal in OA No. 804/2017 (Earlier OA 36/2012), Rajiv Narayan & Anr. vs. Union of India & Ors. Vide order dated 12.04.2019, directions were issued to CPCB to determine, within one month, the scale of compensation to be recovered for violation of the Rules. Pursuant thereto, CPCB in May 2019, issued guidelines titled as 'Determination of Environmental Compensation to be recovered for violation of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016'. Reference of HOWMTM Rules, 2016 was given in the guidelines of May 2019 since only those Rules were in operation at the time of issue of the guidelines but in effect, the guidelines provided mechanism of determination of environmental compensation for violation of the Rules pertaining to handling, storage, transport etc. of hazardous waste. In respect of the circumstances applicable in the present case, the formula prescribed therein is as under:

Environmental Compensation = Q x ERF x R

126. Here Q is Quantity of hazardous or other waste which has not been managed with the provisions of environmental laws and norms; ERF is Environmental Risk Factor and R is Environmental Compensation Factor of Rupees.

127. Value of ERF applicable in the present case is 1.5 and R is Rs. 30,000/- as is evident from notice dated 24.10.2019, issued by RO UPPCB to appellant. Value of Q i.e., quantity has to be determined after considering the relevant facts, applicable and available on record, in the present case.

128. Learned Counsel for appellant has said that the aforesaid formula was prescribed by HOWMTM Rules, 2016 and, therefore, would not apply to the transactions of the period between 1995 to 2005. However, we do not find that any such formula, for computation of environmental compensation, has been prescribed in HOWMTM Rules, 2016. The submission is not supported by documents. While we agree with the appellant's counsel's submission that HOWMTM Rules 2016 would not apply in this case, we do not find anything in the said rules to show that the above formula is part of the said rules. The formula is part of guidelines issued by CPCB pursuant to direction issued by this Tribunal in Rajiv Narayan case (supra).

129. It is also contended that value of R is prescribed as Rs. 30,000/- per ton, by CPCB very recently, hence it cannot be applied to appellant as such and instead value of R should be taken with corresponding reduction as it ought to be in 1995-2005. In our view, since damage is continuing, the present value of R can safely be applied in the present case. Appellant has committed a crime under EP Act 1986, Water Act 1974 by dumping hazardous waste at questioned site and took no steps for its removal. It has violated law. The dumped waste has continuously remained lied at the questioned site till date and causing damage to environment continuously. Now appellant cannot be allowed to take advantage of its own wrong. It is not open to appellant to contend that since UPPCB has failed to take remedial steps in time hence lapse of time should contribute to his advantage. Appellant has failed in observing its statutory obligations and such failure is continuing till date hence appellant has to bear cost which in presenti may be borne by Statutory Regulator. We, therefore, reject the otherwise submission advanced on behalf of appellant.

130. In fact, CPCB guidelines providing the above formula are not under challenge in the Appeal. Though, we find that the guidelines have been held in some other cases by this Tribunal as providing meagre amount as value of R but in the present case, since it is an Appeal and the order of RO UPPCB is under challenge, we will examine the validity of the compensation computed by applying formula by RO UPPCB based on guidelines of CPCB and would not go to examine correctness of the guidelines or the formula prescribed by CPCB since it is not under challenge by appellant before us.

131. Determination of quantity of waste dumped by appellant as also environmental compensation payable by it: RO UPPCB during site inspection, on 13.07.2021, has found 3177 MT waste dumped inside the factory premises of the appellant and in absence of any contradiction on part of appellant, we have no reason but to accept the said report. Therefore, it is held that inside the factory premises, the quantity of waste dumped by appellant was 3177 MT.

132. The appellant has not placed any record to show its permitted capacity of production of BCS. In the chart filed by appellant, there is production of chromium, sulphate and waste, we find that in 1999, 2000, 2001, 2002, 2003 and 2004, production of BCS has been shown as 1596.25 MT, 1689.35 MT, 1601.5 MT, 1597.9 MT, 1642.3 MT and 1672.15 MT respectively. The highest production about 1600 MT has been shown in four years i.e., in 2000, 2001, 2003 and 2004. In 1999 and 2002, production is just about 1600 MT per annum. If we take 25 working days in a month, in twelve months, average production in these years of 1999 to 2004 would come as under:

133. The above chart shows that daily production of appellant's unit in six years from 1999 to 2004 was more than 5 MT/day. Besides, appellant was also allowed production of Sodium Dichromate 2 MT/day and Sodium Sulphide 2 MT/day in respect whereof nothing has been stated in the said chart. The figures of Sodium Sulphide production has been given by appellant and in the years 2000 to 2004, production of Sodium Sulphide has been more than 400 MT and has gone to 660 except of 2003 when it was 399 MT. Daily production of Sodium Sulphide would be as under if we take 25 working days in a month:

134. The average production comes to about 1.5 MT/day of bye-product i.e., sodium sulphate. In the order dated 19.11.2019, production capacity of BCS as 4 MT/day while in the order dated 28.05.2020, production capacity of BCS has been mentioned as 3.5 MT/day. The actual production of appellant's unit has been shown from the own chart of the appellant. During some years, production was more than the permitted capacity and this also shows another violation of the conditions of CTE permitted to appellant. However, for the purpose of computation of quantity of waste as also environmental compensation, taking a considerate view, we take lower quantity of production i.e., 3.5 MT/day in consideration as mentioned in the order dated 28.05.2020.

135. Though appellant in its protest letter dated 09.12.2019 (p/142) has stated that its total production capacity was 50 MT/month and it was generating wastage at 12.50 MT/month but this cannot be accepted in view of the production capacity of appellant mentioned in the impugned order dated 28.05.2020 as 3.5 MT/day which would come to 87.5 MT/month with regard to BCS besides other products and also the production figures disclosed in the chart filed by appellant. In the inspection report dated 26.04.2004 at page 472, production capacity of BCS of appellant's unit has been mentioned as 4 MT/day i.e.,100 MT per month. In that case waste generation would come to 25 MT per month. In 129 months functioning of unit quantity of waste would come to 3225 MT. Thus, waste generation mentioned by appellant also cannot be accepted.

136. Similar other unit i.e., Chandni Chemical Pvt. Ltd. in Appeal No. 14/2020, Chandni Chemicals Pvt. Ltd. vs. UPPCB has disclosed production of wastage as 1.5 against 3 MT production of BCS. In the inspection dated 12.06.2004 (p/488) in para 4, Inspection team has mentioned that the chrome containing waste being generated by appellant is about 5 MT/day. Against this report, we find nothing on record on the part of appellant to contradict the same.

137. Since in Appeal No. 14/2020 (supra), we have considered generation of waste at 1.5 MT/3MT production of BCS, we propose to follow the same standard.

138. Period of production of appellant's unit 04.02.1995 to 25 November 2005 would come to 129 months 22 days. Taking the above standard i.e., 1.5 MT/day waste from 3 MT/day production of BCS against 3.5 MT/day production of BCS, the generation of waste would be 1.75 MT/day. Taking 25 days in a month, the monthly generation would be 43.75 MT/month. Therefore, for total production of waste from February 1995 to November 2005 would be 5643.75 MT.

139. Now 1475 MT waste was found in the factory premises, therefore, the waste dumped outside the factory premises comes to 4168.75 MT (5643.75 MT-1475 MT). We accordingly hold that the total waste generated by appellant was 5643.74 MT out of which 1475 MT was stored inside the factory and rest outside the factory premises.

140. Since dumping/storage of entire waste was unauthorized and illegal, in view of our findings to issues no. II and III for the purpose of computation of environmental compensation, the entire waste has to be considered. Now applying the formula i.e., Environmental compensation (EC)= Q x ERF x R, environmental compensation is computed as Rs. 25,39,68,750/- (EC= 5643.75 x 1.5 x 30000).

141. At this stage, we may also place on record our disapproval to the manner in which different stand and figures have been given by appellant. Appellant has shown production capacity of BCS while chart shows much higher quantity of production. Information was in appellant's possession but it has disclosed selective ones. Scientific literature on the subject shows that normally percentage of chromium available in chromite ore is around 46% in metallurgical process and in other process, it is lesser. Hence to claim that appellant could produce more BCS from the lesser quantity of basic raw material i.e., chromite ore, is unacceptable particularly, in the absence of any material to show that it could have been possible or it could have been obtained by appellant. On the contrary, we have scientific material available in public domain to show otherwise.

142. Chromite ore: Chromite ore consists of varying percentages of Chromium, iron, aluminum and magnesium oxides as the major components. It has been classified into three grades associated with their use and chromic oxide content; metallurgical (greater than 46%), chemical (40-46%) and refractory (less than 40%) grades. Technological advances have allowed considerable interchangeability among the various grades, particularly the so-called chemical grade which can be utilized in all three industries. A more definitive classification is: (i) 'high-chromium' chromite (metallurgical-grade), containing a minimum of 46% chromic oxide and a chromium: iron ratio greater than 2:1; (ii) 'high-iron' chromite (chemical-grade), with 40-46% chromic oxide and a chromium: iron ratio of 1.5:1 to 2:1; and (iii) 'high-aluminium' chromite (refractory-grade), containing more than 20% aluminium oxide and more than 60% aluminium oxide plus chromic oxide.

143. Process of making BCS: BCS also claimed as Chromium powder is a kind of crucial inorganic chemical product widely used in printing, dyeing, pottery, green ink and tannery industry etc. In tanning industry, it is a kind of extremely important chrome tanning agent. BCS is mainly a mixture of chrome sulfate and sodium sulfate, a green colored powder containing chromium tri-oxide [Cr2O3] (26%) and Na2(SO4) < 26% with basicity of 33%. BCS is produced by reaction of chromic oxide and sulfuric acid followed by reduction by sulfur-di-oxide (SO2). There are various methods in details, whereof, it is not necessary for us to go and it is suffice to say that chromite ore is used to produce compounds of Chromium or its derivatives. Raw materials for most of the chrome auxiliaries or chemicals are sodium di-chromate or chromate which is produced from chromite ore. Normally, BCS is produced with basicity of 33%. Products with higher basicity for example 42% or 50% may be obtained by the addition of sodium carbonate.

144. There is a detailed research paper on the subject titled as "Advances towards a Clean Hydrometallurgical Process for Chromite" by Bo Zhang, Peiyang Shi and Maofa Jiang published on 28.01.2016 in Minerals 2016. The paper contains the detail of preparation technology of chromium salt. It is stated therein that acute capacity of Cr (VI) has caused a serious concern and pollution problem by chromite process residue at a global level. Researches were going on to resolve pollution problem and various methods were subjected. Appellant used sulphuric acid and caustic soda besides chromite ore in the technology adopted by it and this is called alkali treatment technology. The above paper has said, "the technologies based on the alkali treatment cannot fundamentally resolve the pollution problem, because the oxidation of Cr (III) to Cr (VI) is unavoidable during chromite decomposition". According to the aforesaid study, recovery of chromium is usually in the range of 75% to 81%. It is also said that the toxic residue of industrial chromium salts is mainly linked to sodium dichromate production and preparation of one ton of sodium dichromate can generate about 2.5 tons of residue in which Cr (VI) content is ≥ 0.4%, present in the carcinogenic calcium chromate phase. There is another process of non-calcium roasting process wherein recovery of chromium may reach to >90% but recovery of chromium salt from chromite ore >100% is not provided in any scientific literature on the subject. therefore, the figures of purchase of chromite ore given by appellant is not reliable more so for the reason that the production figure the appellant is supported with the audited annual financial statement which is not the case with the quantity of chromite ore purchased by appellant.

145. In view of above computation, objections raised by appellant that total quantity of hazardous waste, lying at the questioned site, has been taken proportionately against appellant for computation of environmental compensation, becomes reductant, since we have computed above without taking into consideration any such information. On the contrary, we have computed on the basis of the information available on record which is not contradicted by appellant. Therefore, we have left with no scope of argument for appellant that computation of compensation is based on conjecture or surmises. We have also not taken into consideration any other facts except the figures disclosed by appellant himself and those figures have been taken into consideration in the ways available for purpose for computation as above.

146. We also express our disapproval to the manner in which environmental compensation has been determined by RO UPPCB, Kanpur Dehat. On the one hand, it has applied the formula of EC=Q x ERF x R but for determining value of Q, it has not considered the contribution of appellant as such but taking total quantity of dumped waste at questioned site as 62225 MT, it has divided the same by taking appellant's production capacity of 4 MT/day in proportionate to other unit's production capacity and on that basis, has arrived at the quantity of waste differently on all the three occasions.

147. Learned Counsel for UPPCB did not dispute that the total quantity of waste collected at the questioned site reflected the period of 1976 and onwards but admittedly, appellant commenced its production only in 1995, therefore, for the waste dumped at the questioned site prior to 1995, no liability could have been fastened upon the appellant. In a mechanical manner, entire quantity of 62225 MT has been divided proportionately between six units initially and thereafter, eleven units and then eight units respectively. We express our strongest disapproval to the manner in which RO UPPCB has acted in this case.

148. Determination of environmental compensation is a serious matter and must be discharged impartially, objectively and on relevant material. Whimsical, capricious or arbitrary computation of environmental compensation is nothing but gross abuse of process of law and power. We have no hesitation in observing that in this particular case there is a complete failure on the part of Statutory Regulator and in particular, RO UPPCB in discharge of its duties for implementation of environmental laws. The units including appellant's commenced business operations by running their units without requisite clearances/consents but officials of UPPCB failed to check them and no action punitive or otherwise was taken to prevent such illegal functioning. Second, fact of dumping of hazardous waste comprising chromium came to the notice of concerned RO UPPCB long back and within short period of commencement of production by appellant's unit, still except of sending letters and notices, no effective, preventive, punitive and remedial action was taken. It is only when this Tribunal came across the information about such massive violation of environmental laws and norms and contamination of ground water affecting health of local people and issued directions for remedial action, the concerned Statutory Regulator has acted/reacted but that too in very perfunctory, casual and negligent manner. We condemn and disapprove such conduct and functioning of officials of UPPCB and direct Competent Authority to take appropriate action against erring officials in accordance with law.

149. Issue IV is answered accordingly holding that appellant generated 5643.75 MT of waste where against 1475 MT was stored inside the factory premises and 4168.75 MT was dumped outside the factory premises and liable to pay environmental compensation of Rs. 25,39,68,750/-

ISSUE V:

150. The major objection taken by appellant against imposition and demand of environmental compensation is limitation. It is contended that appellant's unit actually functioned between 1995 to 2005 but during that period, no compensation was imposed upon it. For the first time, demand of environmental compensation was raised by RO UPPCB vide order dated 19.11.2019 where against appellant approached this Tribunal in OA 21/2020 (supra) which was disposed of on 28.01.2020. Pursuant to Tribunal's order dated 28.01.2020, appellant submitted a representation dated 10.02.2020 whereafter order dated 28.05.2020 was passed maintaining environmental compensation of Rs. 46,67,80,837.50. Against this order, present Appeal was filed and during pendency of Appeal, quantum of environmental compensation was re-visited by RO UPPCB and in the report dated 30.09.2021, the revised environmental compensation was computed as Rs. 33,83,27,196/- for chromium waste, quantified as 7518.382 MT. Tribunal in its order dated 12.11.2021 found that the re-determined compensation is not in accordance with Tribunal's order in as much as no specific finding was recorded about attributability of default to particular unit and report did not show scientific exercise for determining liability. Pursuant to Tribunal's order dated 12.11.2021, another compliance report dated 28.07.2022 was filed and environmental compensation was re-revised to Rs. 44,34,53,042/- assessing quantity of chromium waste as 9854.512 MT. On three occasions, three different amounts of environmental compensation have been determined which itself shows total non-application of mind on the part of the concerned authority i.e., RO UPPCB.

151. In any case, it is contended that after closure of the unit on 07.02.2005, environmental compensation determined in November 2019, i.e., after more than 14 years is per se barred by limitation and in any case, it is impermissible having been demanded after lapse of extraordinary length of time. If no period of limitation is prescribed under Statute for computation of environmental compensation by application of 'Polluter Pays' principle by Statutory Regulator, the law provides that power should be exercised within reasonable time and such reasonable time cannot be stretched or expanded to more than 14 years. Due to lapse of long time, imposition of environmental compensation upon appellant is vitiated and liable to be set aside.

152. Learned Counsel on behalf of appellant did not dispute that for exercise of power of imposition of environmental compensation by RO UPPCB, no period of limitation is prescribed under any Statute. In the circumstances, it has to be examined whether lapse of almost one and a half decade in computation and demand of environmental compensation from appellant would vitiate the demand or not. In this regard, we may first examine the authorities relied by appellant in support of the above argument.

153. First judgment of Supreme Court relied in this regard is, Shalimar Works Ltd. vs. Workmen (supra). The matter has arisen before a three Judges' Bench of Supreme Court in the proceedings, arising under Industrial Disputes Act, 1947. There were certain disputes between the workmen and employer namely M/s. Shalimar Works Limited. workmen raised industrial dispute which was referred to Industrial Tribunal (Sixth) for adjudication by Govt. of West Bengal. On the matter of profit-sharing bonus and reinstatement of 250 workmen, Industrial Tribunal gave its award where against both the parties filed appeal before Labour Appellate Tribunal. Appellate Tribunal did not interfere with the award of Industrial Tribunal and dismissed Appeal with one modification namely, by adding that, if in any year, it was found that bonus worked out according to award of Industrial Tribunal was less than profit bonus, calculated according to Full Bench formula evolved in Miss-Owners' Association, Bombay vs. The Rashtriya Mill Mazdoor Sangh, Bombay 1950 L.L.J. 1247F, workmen would be entitled to bonus under the formula; otherwise they would get bonus under the scheme as modified by Industrial Tribunal. Against order of Appellate Tribunal, the employer filed Civil Appeals Nos. 317/1950 while the workmen filed Civil Appeals Nos. 318/1950 before Supreme Court. On the question of bonus, parties agreed that revision made by Industrial Tribunal should be accepted and the condition laid down by Appellate Tribunal should be deleted. Accordingly on the issue of bonus, Supreme Court upheld Industrial Tribunal and modification made by Appellate Tribunal was set aside. The relevant part of judgment in para 8 reads as under:

"8. ...In view of this agreed statement, we delete the condition laid down by the Appellate Tribunal and order that bonus should be paid in accordance with the scheme as revised by the Industrial Tribunal. Learned counsel for the workmen, however, urged that the condition as to minimum attendance of 100 days for entitlement to any bonus at all and of minimum attendance of 275 days for entitlement to full bonus was arbitrary and should be set aside. This condition has been accepted by both the Tribunals and appears reasonable and we see no reason to interfere. It was further contended that bonus for the years 1951 and 1952 should have been ordered to be paid according to the revised scheme. This contention was also negatived by the two Tribunals and we see no reason to differ from them. The two appeals therefore with respect to bonus are dismissed subject to the modification given above."

154. Now coming to the issue with respect to reinstatement of 250 old workmen, Supreme Court referred to the factual background of the issue stating that a Major Engineering Tribunal was set up by Government of West Bengal in October 1947 to decide disputes between major engineering firms and their workmen. Shalimar Works Ltd. as well as workmen were parties to the disputes which was pending before that Tribunal. The issues before Tribunal were of a very comprehensive nature and included all kinds of disputes that could arise between employers and employees. While that adjudication was pending, workmen suddenly pressed certain demands upon the company for immediate solution without awaiting the award of Tribunal, even though the demands so put forward were under adjudication. The company naturally refused to meet the demands when they were under investigation by Tribunal. Consequently, the workmen who had come to work on 23.03.1948, started a sit-down strike after they had entered the company's premises. This strike continued from March 23 to 27 and it was on March 27 that workmen were ejected from the premises by police according to the case of the company or were induced to leave the premises by police according to the case of the workmen. Anyhow, after the workmen left the premises on 27th, the company gave notice on that day that the Works would be closed indefinitely. Another notice was given by the company on 06.04.1948, in which it was notified that all those who had resorted to illegal strike from 23.03.1948, would be deemed to have been discharged from that date. Thereafter, no work was done till 15.05.1948. On that date, the company gave a notice that if sufficient suitable men apply for employment on or before May 19, the works would be opened on a limited scale from May 20. It seems, however, that nothing came out of this notice. Eventually on July 5, the company gave another notice to the effect that the works would re-open on 06.07.1948 and all old employees could apply, and if re-engaged their past services would be counted and their conditions of service would be as awarded by Major Engineering Tribunal, which, it seems, had given its award in the meantime. It was also said in the notice that upto July 21, the company would only consider engagement of former employees and no fresh labour would be recruited till that date. Thereafter, the majority of old workmen applied for being retaken in service and everyone who applied upto July 21 was re-engaged. Thereafter, the company refused to re-engage the old employees, a few of whom are said to have applied in November and December 1948, August 1951, February 1952 and January 1953.

155. Appellate Tribunal found that a list was carelessly prepared in as much as some names were repeated; against some serial number, there were neither names nor ticket numbers. Industrial Tribunal ordered reinstatement without specifying who were to be reinstated; it really did not know who were the persons to be reinstated. In fact, what Tribunal did was to order the company that identity of the workmen to be reinstated might be established to give a general notice on its notice-board notifying the strikers to come and join their duties on a fixed date and to reinstate whichever striker applied within the time allowed.

156. Appellate Tribunal on the issue of reinstatement of 250 old workmen, criticized the award of Industrial Tribunal observing that direction of reinstatement was vague and highly objectionable. Appellate Tribunal also came to the conclusion that identity of 115 workmen had been established, 100 out of them had withdrawn their provident fund and these 100 accepted the order of discharge since they withdrew provident fund and hence no relief could be granted to them. With regard to remaining 15 workmen, Appellate Tribunal found that they had not withdrawn their provident fund, therefore, for their reinstatement also, Appellate Tribunal issued directions. However, Appellate Tribunal also ordered that no compensation could be allowed to the workmen for the period between their discharge and their reinstatement because of the delay on their part in asking for redressal. The company argued before Supreme Court that both Tribunal found the sit-down strike un-justified, hence company was entitled to discharge the workmen. Further, discharge took place in 1948 and company re-opened in July 1948 but the reference of industrial dispute was made after four years without list of the workmen said to have been discharged, hence the reference was not proper. On behalf of the workmen, it was argued that since industrial dispute was pending between company and workmen, the workmen could not have been discharged without obtaining permission of Tribunal under Section 33 of Industrial Disputes Act, 1947. Since discharge notice dated 06.04.1948 was given without obtaining sanction of Tribunal, it was breach of Section 33 and, therefore, workmen were entitled to reinstatement. The above arguments were dealt with by Supreme Court and it observed that on 06.04.1948 when company discharged its workmen, a dispute was already pending and thus, there was breach of Section 33. However, remedy for such breach was provided under Section 33- A which could be availed by an individual workman but they did not avail the said remedy individually or collectively. Some letters were written to Assistant Labour Commissioner in November 1949 i.e., after almost one and a half year from the date of discharge. After writing those letters, again the workmen remained silent/inacted for almost further 3 years while the reference was made on 07.10.1952. In this backdrop, Supreme Court said:

"13....It is true that there is no limitation prescribed for reference of disputes to an industrial tribunal; even so it is only reasonable that disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed, particularly so when disputes relate to discharge of workmen wholesale, as in this case. The industry has to carry on and if for any reason there has been a wholesale discharge of workmen and closure of the industry followed by its reopening and fresh recruitment of labour, it is necessary that a dispute regarding reinstatement of a large number of workmen should be referred for adjudication within a reasonable time. We are of opinion that in this particular case the dispute was not referred for adjudication within a reasonable time as it was sent to the Industrial Tribunal more than four years after even re-employment of most of the old workmen..."

157. Supreme Court, therefore, gave three reasons for denying relief of reinstatement to workmen i.e.,

(i) Remedy under Section 33- A was not availed by the workmen within a reasonable time after discharge on 06.04.1948;

(ii) Order of discharge was passed after illegal and unjustified sit-down strike and this caused a precarious circumstance for passing order; and

(iii) The reference was made after an unreasonable length of time and in a vague manner.

158. This is evident from the following extract of the judgment:

"13....In the circumstances there was no reason for ordering reinstatement of any one on such a vague reference after such an unreasonable length of time. The defect in the order of discharge of April 6, due to permission not having been obtained under s. 33 can in the circumstances of this case be ignored on the ground that the workmen who did not re-join in July 1948, were not interested in reinstatement : firstly, on account of the circumstances in which that order came to be made after an illegal and unjustified sit-down strike, secondly, because the workmen in their turn did not avail themselves of the remedy under s. 33-A which was open to them, and thirdly, because the reference was made after an unreasonable length of time and in a vague manner. We are therefore of opinion that the Appellate Tribunal should not have ordered the reinstatement of even the fifteen workmen in the circumstances as their case was exactly the same as the case of the hundred workmen, except in the matter of the withdrawal of the provident fund."

159. It is thus, evident from the above judgment that lapse of four years' time in making reference in the peculiar facts of the case, was taken as a ground to deny relief to the workmen and the above judgment has been rendered in the particular facts of the case before Supreme Court.

160. The next authority relied by appellant is Chhedi Lal Yadav vs. Hari Kishore Yadav (supra). In this case, suit land was sold in execution of rent decree on 13.08.1942. The land in execution was purchased by one Babu Md. Abdus Samad and, thereafter, changed hands four times. In 1951, State of Bihar enacted the i.e., Bihar Kosi Area (Restoration of Lands to Raiyats) Act, 1951 (hereinafter referred to as 'Bihar Act, 1951'). It provided for restoration of certain lands to farmers i.e., raiyats which were sold for arrears of rent or from which they were ejected for arrears of land between 1st day of January 1939 and 31st day of December 1950. This was operational due to floods in Kosi River which made agricultural operations impossible. Appellant Chhedi Lal Yadav did not take any steps for restoration of land till 04.05.1975 on which date one Gonar Yadav, son of Chanchal Yadav (recorded tenant) filed a petition for restoration of disputed land under Section 3 of Bihar Act, 1951. Eventually, after an earlier remand, when the matter was pending in appeal being Appeals No. 540/1978-1979, it was dismissed in default on 07.09.1980. It was again restored on 23.12.1980 but again dismissed for default on 23.03.1983. Application for restoration was moved after 16 years on 09.08.1999 and was allowed without notice to respondents. Ultimately, Additional Collector on 27.12.2000 allowed restoration of the disputed land in favour of appellant. Respondents filed a writ petition which was dismissed by Learned Single Judge of Patna High Court on 25.03.2004 where against letter patent appeal was preferred by respondents which was allowed. This judgment was appealed before Supreme Court by the appellant who was denied restoration of land. Supreme Court observed that after passing of Bihar Act, 1951, the petition for restoration of disputed land was filed on 04.05.1975 i.e., after a period of 24 years. Thereafter, when appeal was dismissed on 23.08.1983, the appellant applied for restoration on 09.08.1999 i.e., after period of 16 years of such dismissal. Appellant, therefore, was found guilty of inordinate, unexplained and unjustified delay, firstly, in making application for restoration of land after a period of 24 years after such a right is said to have accrued to appellant and then in making an application for restoration after a period of 16 years when the matter was dismissed in default.

161. In this backdrop, Supreme Court considered the arguments advanced on behalf of appellant that delay must be over-looked since Bihar Act, 1951 was beneficial piece of legislation intended to bring relief to farmers who had been dispossessed during the proscribed period. It was observed by Supreme Court that it is a settled law where the Statute does not provide for a period of limitation, the provisions of the statute must be invoked within a reasonable time. Now what reasonable time would be, was sought to be explained by referring to the term 'reasonable time', explained in Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, where the term 'reasonable time' is explained as under:

"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer."

162. After referring the term 'reasonable time' as explained in Advanced Law Lexicon, Court said that the time must be reckoned reasonably, not only in order to preserve rights and advantages, a party possesses, but equally to protect each party from the losses he ought not to suffer. Whether an action has been taken within a reasonable time, must also be viewed from the point of the view of the party who might suffer losses. Applying the said reasonable time to the facts of the case before Supreme Court, it was observed that auction sale took place in 1942 and application for restoration of land was first made in 1975. The appeal was dismissed for default in 1983 and, thereafter, 16 years were taken in filing application. In the meantime, disputed land changed hand twice. The long-settled position thus, could only be upset for some very compelling reason and on making out an extremely strong case. Consequently, Supreme Court also negated the arguments advanced on behalf of appellant and in para 13 said:

"13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the statute..."

163. Supreme Court also referred to the facts of the case before it and said that action is grossly delayed and taken beyond reasonable time, particularly, when the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights. Court said that merely because legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay.

164. The above judgment very categorically state that what reasonable time is, it has to be decided in the circumstances of each case and purpose of the statute and not to be applied mechanically.

165. State of Punjab & Ors. vs. Chaman Lal Goyal (supra) was a service matter. Chaman Lal Goyal (hereinafter referred to as 'writ petitioner') was Superintendent of Nabha High Security Jail in 1986. On his transfer from the said post, he gave charge of his office on 26.12.1986. On the night intervening 1/2-January, 1987 certain inmates, said to be terrorists, made an attempt to escape. In that connection, two of the inmates attempted to escape and one jail official died in the shooting which took place. Six terrorists made good their escape. Inspector General of Prisons immediately inspected prison and submitted the report to State Government on 09.01.1987. He reported inter-alia that the incident was cumulative result of lax administration, indiscipline and lack of control over the prisoners. He also reported that the writ petitioner, Chaman Lal Goyal followed the policy of appeasement towards the extremists; he yielded to each and every illegal demand of the extremists as a result detenu Gurdev Singh assumed leadership of the prison population and dictated terms to the administration; there was a total breakdown of the classification of the inmates in the different wards of the jail etc. Inspector General recommended that Deputy Superintendent Shri Surinder Singh and Superintendent Jail, Shri Chaman Lal Goyal responsible for the loose administration and laxity, be placed under suspension. Another enquiry was ordered by District Magistrate which was conducted by Sub-Divisional Magistrate but in his report submitted to District Magistrate on 26.01.1987, Sub-Divisional Magistrate did not make any observations or comments for or against the writ petitioner. No action was taken against Chaman Lal Goyal until 1992 and he continued service. For the first time, he was called to the office of Secretary to Home Department on 25.03.1992 and, thereafter, served a memo of charges on 09.07.1992. Writ petitioner submitted explanation on 04.01.1993 denying charges. After obtaining comments of Inspector General of Prisons, Government appointed an enquiry officer on 20.07.1993. Immediately, thereafter, writ petitioner filed writ petition before High Court on 24.08.1993, seeking quashing of charges and orders appointing the enquiry officer. The writ petition was allowed vide judgment dated 25.08.1994 and High Court quashed memo of charges as well as order appointing enquiry officer. Court examined judgment of High Court which was based on two findings firstly that writ petition was exonerated by Sub-Divisional Magistrate and secondly, on the ground of delay. Supreme Court found that the findings with regard to exoneration by Sub-Divisional Magistrate was nothing but a factual error and so far as the delay in concerned, in para 9 of the judgment, Court observed that though there was a delay of five years and a half year in serving the charges but in every case, such delay is not fatal. It all depends on the facts of the given case. Court said;

"9.... The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, malafides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charges. But how long a delay is too long always depends upon the fact-, of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing..."

166. Judgment of High Court was accordingly set aside by allowing Appeal by Supreme Court.

167. Now, in the present case, we have to examine the above law whether applicable to the facts, situation of present case and if so, to what extent. It is no doubt true that from 2000 and onwards, officials of UPPCB when visited appellant premises, found violations with regard of dumping of hazardous waste which appellant was dumping in the nearby open area outside the factory premises. Closure notices were also issued, lastly in October 2005 but no compensation was determined. The serious damage caused by hazardous waste dumped at the questioned site was reported in the report of Justice Arun Tandon, former Judge stating that ground water had got contaminated and health of the people in the area is also severely affected. The said reports dated 25.09.2019 and 26.09.2019 were submitted by the Committee comprising Justice Arun Tandon, former Judge and the said Committee was appointed by Tribunal's order dated 06.08.2018 passed in OA No. 200/2014 (supra). Prior thereto, hazardous effects and consequences of dumping of chromium waste in the area were not actually detected and the evil effects came into light only by virtue of the aforesaid report. The above report also brought to the notice of this Tribunal that Statutory Regulators have not discharged their duties properly and appropriate punitive and remedial action were not taken against the polluters, compelling this Tribunal to pass an order directing the authorities to take appropriate action in accordance with law. It is argued that under Sections 14 and 15, there is a limitation prescribed within which Tribunal can exercise its powers under NGT Act, 2010 and when something could not have been done by Tribunal under the aforesaid provision, it could not have directed the authorities to exercise their powers travelling beyond a period of limitation prescribed under Sections 14 and 15 of NGT Act, 2010. However, when confronted, Learned Counsel for appellant could not dispute that provisions of Sections 14 and 15 are not extended or applicable to the Statutory Regulators who exercise their powers under Water Act, 1974, Air Act, 1981 and EP Act, 1986.

168. The question of limitation or reasonable time, thus, has to be examined in light of nature of the Statue i.e., statues relating to environmental; right, if any, possessed by the appellant, with regard to dumping of hazardous waste in open land and causing pollution and affecting health of people at large and whether any right, if possessed by appellant, has vested in itself which should not be divested after long time. Answer to the above question is that no one has any right to dump hazardous waste containing harmful metal or material causing damage to environment and similarly, no one has any right, constitutional, legal or otherwise, to cause pollution and thereby, damage not only to environment but also health of the people at large.

169. Protection of environment has been held to be a pious duty of the mankind as propounded in our ancient scriptures going back to several thousand years.

170. Vedas are universally accepted to be a most precious Indian heritage. They have knowledge of all types. The main vedic views revolve around the concept of nature and life. There are several references on environmental conservation, ecological balance and weather cycle which indicates high level of awareness of the people of the ancient people in respect of environment and ecology. Vedas attach great importance to environmental protection and purity. They persist on safeguarding the habitation, proper afforestation and non-pollution. Man is forbidden from exploiting nature. He is taught to live in harmony with nature and recognize that divinity prevails in all elements, including plants and animals. A verse from Rig Veda says,

"Thousands and hundreds of years if you want to enjoy the fruits and happiness of life then take up systematic planting of trees.".

171. At that time, the term 'pollution' was not there but the learned ancestors and sages in ancient scriptures call it 'poisoning of environment'. They believed that five elements (space, air, fire, water and earth) which constitute environment, are all derived from prakriti, the primal energy and our human body is composed of these and related to these five elements and connects each of the elements to one of five senses. Human nose is related to earth, tongue to water, eyes to fire, skin to air and ears to space. This bond between our senses and the elements is foundation of our human relationship with the natural world. Vedas stress the need for protection and development of forests. Human beings have to safeguard the trees. People in vedic times regarded nature and environment in a holistic manner and revered each of its constituents and entities by carefully preserving them.

172. In Rig Veda, verse 6:48:17 says, "Do not harm the environment; do not harm the water and the flora; earth is my mother, I am her son; may the waters remain fresh, do not harm the waters; "do not cut trees, because they remove pollution.".

173. In Yajur Veda, verse 5:43 says, "Do not disturb the sky and do not pollute the atmosphere.".

174. Similar references, we find in Upnishads and other Purans as also the epic literature like Ramayana, Mahabharata and Bhagavad Gita. Kautilya's Arthasastra disclosed lot of knowledge about environment and its conservation. For protection of trees, there was recommendation of Superintendent of Forest Produce and prohibition of certain kinds of trees, violation whereof was punishable. Certain forests declared were protected calling 'Abhayaranya' and heavy penalties and capital punishment were prescribed for offenders in Arthasastra.

175. Presently, protection of environment is global issue and not an isolated problem of an area or a nation. However, in India consciousness about protection of environment is so important that wide interpretation has been given to Article 21 of Constitution by interpretating Right to Life to include right to live in a wholesome environment (Subhash Kumar vs. State of Bihar and Ors, AIR 1991 SC 420 [LQ/SC/1991/12] ); pollution free environment (Charan Lal Sahu vs. Union of India, (1991) SCC 613); the right to enjoyment of pollution free air and fresh water (Narmada Bachao Andolan vs. Union of India, (2010)10 SCC 644) [LQ/SC/1996/776] ; a clean environment (Vellore Citizen Welfare Forum vs. Union of India (1996) 5 SCC 647) [LQ/SC/1996/1368] and a decent environment (Shantistar Builders vs. Narayan Khimalal Gotame & Others (1990)1 SCC 520) [LQ/SC/1977/344] . In Rural Litigation and Entitlement Kendra vs. State of UP : (1985)2 SCC 431 [LQ/SC/1975/233] , it was held that right to live in pollution free and healthy environment also includes right to live in a healthy environment with minimal disturbance of ecological balance. In Virender Gaur & Others vs State of Haryana & Others 1994 SUPPL(6) SCR 78, it was held that live in atmosphere congenial to human existence is a Fundamental right to life under Article 21. The extension of right to life to various spans by judicial interpretation by Supreme Court of India has been appreciated recently by Irish Supreme Court in Friends of the Irish Environment vs. Ireland, 2017 JR 793 (IR) wherein Irish Supreme Court for the purpose of Ireland declined to acknowledge the constitutional right to environment but observed that India is the only exception in the common law family to interpret constitutional right to environment without an express constitutional provision. Irish Court referred to David R Boyd's detailed study titled as "The Environmental Right Revolution: A Global Study of Constitutions, Human Rights, and the Environment" and observed that most of the States where constitutional right to environment was adopted has been achieved by including such wording in the Constitution and not too expensive and direct interpretation.

176. In the environmental context, Indian Supreme Court, as long back in 1980 in Municipal Council Ratlam vs. Vardhichand, AIR 1980 SC 1622 [LQ/SC/1980/291] , held that decency and dignity are non-negotiable facets of human rights and the contamination breach such human rights which were reflected as Fundamental Right under the Indian Constitution. Court directed Municipal Council to remedy lack of sanitary facilities and issued 5 directions in this regard such as construction and management of drainage system, stopping polluted effluents, seeping on the street and to maintain a hygiene and clean environment.

177. In Subhash Kumar vs. State of Bihar (supra), Court observed that right to a healthy environment existed within the right to life and breach of the right to a healthy environment could be litigated. In 19th decade, Supreme Court also recognized various principles applicable to environmental law like 'Polluter Pays' principle, public trust doctrine, precautionary principle, existence of inter-generational rights and sustainable development and also diluted the concept of locus-standi in environment matters in particular.

178. In International environmental law, there is another document of non-regression which mandates the State or its entities not to pursue action which has a net effect of diminishing the legal protection of the environment or access to environmental justice and this doctrine was applied and recognized by this Tribunal in OA No. 677/2016, Society for Protection of Environment and Bio-diversity vs. Union of India.

179. When NGT Act, 2010 was enacted, vide Section 20, the principles of 'Polluter Pays' were recognized and this is the statutory recognition in the context of India.

180. The law of environment, in general, has developed through judicial precedents. The reason being that environment is nobody's private property but each and every individual, separately or collectively, has interest in a clean and fresh environment. Therefore, the environmental litigation is initiated not for settling of private or personal rights but public rights and welfare. It is for this reason that the environmental litigation has generated through Public Interest Litigation but looking through the importance of the issues and the subject matter, the interest of environment has been protected and given priority over other rights.

181. It has been noted that development is antithesis to environment but for balancing the same, the principle of sustainable development has been propounded and conversed so as to keep a balance of both but in a given situation, environment has to prevail over the development. The dispute relating to environment, therefore, has been given different dimensions and this is also evident from Supreme Court judgment wherein power of this Tribunal for taking suo-moto cognizance of dispute has been recognized, observing that environmental matters stand on a different footing and in brief, Court has said in Municipal Corporation of Greater Mumbai vs. Ankita Sinha & Ors., as under:

i. NGT was conceived as a complimentary specialized forum to deal with all environmental multidisciplinary issues, both as original and also as an appellate authority, which complex issues were hitherto dealt with by High Courts and Supreme Court.

ii. NGT was intended to be the competent forum for dealing with environmental issues instead of those being canvassed under the writ jurisdiction of Courts. It was explicitly noted that creation of NGT would allow Supreme Court and High Courts to avoid intervening under their inherent jurisdiction when an alternative efficacious remedy would become available before the specialized forum.

iii. The power of judicial review was omitted to ensure avoidance of High Courts' interference with Tribunal's orders by way of a midway scrutiny by High Courts, before the matter travels to Supreme Court where NGT's orders can be challenged.

iv. The mandate and jurisdiction of NGT is conceived to be of the widest amplitude and it is in the nature of a sui generis forum.

v. Unlike Civil Courts which cannot travel beyond the relief sought by the parties, NGT is conferred with power of moulding any relief. The provisions show that NGT is vested with the widest power to appropriate relief as may be justified in the facts and circumstances of the case, even though such relief may not be specifically prayed for by the parties.

vi. Myriad roles are to be discharged by NGT, as was encapsulated in the Law Commission Report, the Preamble and the Statement of Objects and Reasons.

vii. Parliament intended to confer wide jurisdiction on NGT so that it can deal with the multitude of issues relating to the environment which were being dealt with by High Courts under Article 226 of the Constitution or by Supreme Court under Article 32 of the Constitution.

viii. The activities of NGT are not only geared towards the protection of environment but also to ensure that the developments do not cause serious and irreparable damage to ecology and the environment.

ix. Concept of lis, would obviously be beyond the usual understanding in civil cases where there is a party (whether private or government) disturbing the environment and the other one (could be an individual, a body or the government itself), who has concern for the protection of environment.

x. NGT is not just an adjudicatory body but has to perform wider functions in the nature of prevention, remedy and amelioration.

xi. In Bhopal Gas Peedith Mahila Udyog Sangathan vs. Union of India, (2012)8 SCC 326 [LQ/SC/1997/1257] , Court mandated transfer of all cases concerning the statutes mentioned in Schedule I of NGT Act to the specialized forum as otherwise there can be conflicts with the High Courts. Notably, some of those cases were originally registered suo-moto by the Courts.

xii. As long as the sphere of action is not breached, NGT's powers must be understood to be of the widest amplitude.

xiii. In Mantri Techzone (P) Ltd. vs. Forward Foundation, (2019)18 SCC 494 [LQ/SC/2019/431 ;] , Court recognized that NGT is set up under the constitutional mandate in Entry 13 of List I in Schedule VII to enforce Article 21 with respect to the environment and in the context, Tribunal has special jurisdiction for enforcement of environmental rights.

xiv. In Rajeev Suri vs. DDA, , Court said that in its own domain, as crystallized by the statute, the role of NGT is clearly discernible.

xv. Referring to Andhra Pradesh Pollution Control Board vs. Prof. M.V. Nayudu (Retd.) and Ors,: (1999)2 SCC 718 [LQ/SC/1991/79] , Court said that role of NGT was not simply adjudicatory in the nature of a lis but to perform equally vital roles which are preventative, ameliorative or remedial in nature. The functional capacity of the NGT was intended to leverage wide powers to do full justice in its environmental mandate.

xvi. Statutory Tribunals were categorized to fall under four subheads; Administrative Tribunals under Article 323A; Tribunals under Article 323B; Specialized sector Tribunals and most prominently; Tribunals to safeguard rights under Article 21. As already noted, the duties of NGT brings it within the ambit of the fourth category, creating a compelling proposition for wielding much broader powers as delineated by the statute.

xvii. Referring to State of Meghalaya vs. All Dimasa Students Union, (2019)8 SCC 177 [LQ/SC/2019/973] , Court said that reflecting on the expanded role of NGT unlike other Tribunals, this Court so appositely observed that the forum has a duty to do justice while exercising "wide range of jurisdiction" and the "wide range of powers", given to it by the statute.

xviii. NGT has been recognized as one of the most progressive Tribunals in the world.

xix. NGT being one of its own kind of forum, commends us to consider the concept of a sui generis role, for the institution.

xx. Referring to DG NHAI vs. Aam Aadmi Lokmanch, , Court repelled the argument for a restricted jurisdiction for NGT and observed in paragraph 76 that powers conferred on NGT are both reflexive and preventive and the role of NGT was recognized in paragraph 77 as "an expert regulatory body", which can issue general directions also albeit within the statutory framework.

xxi. NGT was conceived as a specialized forum not only as a like substitute for a civil court but more importantly to take over all the environment related cases from High Courts and Supreme Court.

xxii. Given the multifarious role envisaged for NGT and the purposive interpretation which ought to be given to the statutory provisions, it would be fitting to regard NGT as having the mechanism to set in motion all necessary functions within its domain and this, as would follow from the discussion below, should necessarily clothe it with the authority to take suo-motu cognizance of matters, for effective discharge of its mandate.

xxiii. Section 14(1) of NGT Act, 2010 deals with jurisdiction, and the jurisdictional provision conspicuously omits to specify that an application is necessary to trigger NGT into action. In situations where the three prerequisites of Section 14(1) i.e., Civil cases; involvement of substantial question of environment; and implementation of the enactments in Schedule I are satisfied, the jurisdiction and power of NGT gets activated. On these material aspects, NGT is not required to be triggered into action by an aggrieved or interested party alone. It would therefore be logical to conclude that the exercise of power by NGT is not circumscribed by receipt of application.

xxiv. Section 14(1) exists as a standalone feature, not constricted by the operational mechanism of the subsequent sub-sections. The sub-Section (2) of Section 14 functions as a corollary and comes into play when a dispute arises from the questions referred to in Section 14(1). Likewise sub-Section (3) thereafter, refers to the period of limitation concerning applications, when they are addressed to the NGT. Where adjudication is involved, the adjudicatory function under Section 14(2) comes into play.

xxv. When it is a case warranting NGT's intervention, or may be a situation calling for decisions to meet certain exigencies, the functions under Section 14(1) can be undertaken and those may not involve any formal application or an adjudicatory process. However, the later provisions may not work in similar fashion. Therefore, care must be taken to ensure unrestricted discharge of the responsibilities under Section 14(1) and that wide arena of NGT's functioning.

xxvi. The other pertinent provisions relating to, inter-alia, jurisdiction, interim orders, payment of compensation and review, do not require any application or appeal, for NGT to pass necessary orders. These crucial powers are expected to be exercised by NGT, would logically suggest that the action/orders of NGT need not always involve any application or appeal. To hold otherwise would not only reduce its effectiveness but would also defeat the legal mandate given to the forum.

xxvii. To be effective in its domain, we need to ascribe to NGT a public responsibility to initiate action when required, to protect the substantive right of a clean environment and the procedural law should not be obstructive in its application.

xxviii. It is not only a matter of rhetoric that the Tribunal is to remain ever vigilant, but an important legal onus is cast upon it to act with promptitude to deal with environmental exigencies. The responsibility is not just to resolve legal ambiguities but to arrive at a reasoned and fair result for environmental problems which are adversarial as well as non-adversarial.

xxix. It would thus be appropriate to state that much of the principles, institutions and mechanisms in this sphere have been created, on account of this Court's initiative.

xxx. Supreme Court adopted the role of an "amicus environment" by threading together human rights and environmental concerns, resultingly developing a sui generis environmental discourse.

xxxi. NGT is the institutionalization of the developments made by Supreme Court in the field of environment law. These progressive steps have allowed it to inherit a very broad conception of environmental concerns. Its functions, therefore, must not be viewed in a cribbed manner, which detracts from the progress already made in the Indian environmental jurisprudence.

xxxii. NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns.

xxxiii. NGT must act, if the exigencies so demand, without indefinitely waiting for the metaphorical Godot to knock on its portal.

182. Therefore, the issue relating to 'environment' vis-à-vis 'reasonable time' or 'limitation' has to be considered in the backdrop of the fact that no one has any legal, constitutional or otherwise right to damage environment or to dump hazardous waste in an unscientific manner at any place so as to cause damage to environment as also adverse impact on the health of the people at large. On the contrary, there is correspondent obligation upon proponent not to indulge in commercial or otherwise activities so as to cause damage to environment and if it causes damage to environment, it will have to pay for the damages caused by it for remediation of damaged environment.

183. The Statuary Regulators, to supervise and regulate such activities, are there but if they fail to discharge their obligation in an effective manner, Courts can intervene and if thereafter, appropriate action is taken by such Regulators, it cannot be said that such action is vitiated on account of delay or latches for the very reason that such action even if taken belatedly does not affect anybody's rights related to environment.

184. Learned Counsel for appellant then contended that 'cause of action' arose when appellant allegedly dumped hazardous waste in open area and if the action is not taken at the relevant time, the reasonableness of the period should be taken from that time. In our view, when a proponent has caused dumping of hazardous waste in an unscientific manner which has the effect of continuously damaging environment not only at the time of such dumping but so long as the dumping has continued and even thereafter, it is a continuous cause of action and any belated or delayed remedial or punitive action which is not otherwise barred by any specific statute, will not be vitiated in law.

185. 'Cause of action' as understood in legal parlance is a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed. It is the foundation of a suit or an action. 'Cause of Action' is stated to be entire set of facts that give rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In other words, it is a bundle of facts which when taken with the law applicable to them, gives the plaintiff, the right to relief against defendants. It must contain facts or acts done by the defendants to prove 'cause of action'. While construing or understanding the cause of action, it must be kept in mind that the pleadings must be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or passage and to read it out of the context, in isolation. Although, it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. Intention of the party concerned is to be gathered, from the pleading taken as a whole. [Ref. Shri Udhav Singh vs. Madhav Rao Scindia (1977)1 SCC 511 [LQ/SC/1993/442] and A.B.C Laminart Pvt. Ltd. vs A.P. Agencies AIR 1989 SC 1239 [LQ/SC/1989/152 ;] ].

186. The expression 'cause of action' as normally understood in civil jurisprudence has to be examined with some distinction, while construing it in relation to environmental statutes, environmental disputes, matters, and issues and the provisions of NGT Act 2010. Such 'cause of action' should essentially have nexus with the matters relating to environment. It should raise a substantial question of environment relating to the implementation of the statutes specified in Schedule I of NGT Act 2010. A 'cause of action' might arise during the chain of events, in establishment of a project but would not be construed as a 'cause of action' under provisions of Section 14 of NGT Act, 2010 unless it has a direct nexus to environment or it gives rise to a substantial environmental dispute. For example, acquisition of land simplicitor or issuance of notification under the provisions of the land acquisition laws, would not be an event that would trigger the period of limitation under the provisions of NGT Act, 2010 'being cause of action first arose'. A dispute giving rise to a 'cause of action' must essentially be an environmental dispute and should relate to either one or more of thes stated in Schedule I to NGT Act, 2010. If such dispute leading to 'cause of action' is alien to the question of environment or does not raise substantial question relating of environment, it would be incapable of triggering prescribed period of limitation under the NGT Act, 2010. [Ref: Liverpool and London S.P. and I Asson. Ltd. vs. M.V. Sea Success I and Anr., : (2004)9 SCC 512 [LQ/SC/2000/1180] , J. Mehta vs. Union of India, : 2013 ALL (I) NGT REPORTER (2) Delhi 106, Kehar Singh vs. State of Haryana, 2013 ALL (I) NGT REPORTER (DELHI) 556 and Goa Foundation vs. Union of India, 2013 ALL (I) NGT REPORTER DELHI 234].

187. Furthermore, 'cause of action' has to be completed. For a dispute to culminate into a cause of action, actionable under Section 14 of NGT Act 2010, it has to be a 'composite cause of action' meaning that, it must combine all the ingredients spelled out under Section 14 and (2) of NGT Act 2010. It must satisfy all the legal requirements i.e., there must be a dispute; there should be a substantial question relating to environment or enforcement of any legal right relating to environment and such question should arise out of the implementation of the enactments specified in Schedule I. Action before Tribunal must be taken within the prescribed period of limitation triggering from the date when all such ingredients are satisfied along with other legal requirements. Accrual of 'cause of action' as aforestated would have to be considered as to when it first arose.

188. In contradistinction to 'cause of action first arose', there could be 'continuing cause of action', 'recurring cause of action' or 'successive cause of action'.

189. These diverse connotations with reference to cause of action are not synonymous. They certainly have a distinct and different meaning in law, 'cause of action first arose' would refer to a definite point of time when requisite ingredients constituting that 'cause of action' were complete, providing applicant right to invoke jurisdiction of the Court or the Tribunal. The 'Right to Sue' or 'right to take action' would be subsequent to an accrual of such right. The concept of continuing wrong which would be the foundation of continuous cause of action has been accepted by Supreme Court in Bal Krishna Savalram Pujari & Others vs. Sh. Dayaneshwar Maharaj Sansthan & Others AIR 1959 SC 798 [LQ/SC/1959/35] .

190. In State of Bihar vs Deokaran Nenshi and Another : (1972)2 SCC 890 [LQ/SC/1975/426] , Supreme Court was dealing with the provisions of Section 66 and 79 of Mines Act, 1952. These provisions prescribed for a penalty to be imposed upon guilty, but provided that no Court shall take cognizance of an offence under Act unless a complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. Explanation to the provision specifically provided that if the offence in question is a continuing offence, the period of limitation shall be computed with reference to every point of time during which the said offence continues. Supreme Court held as under:

"5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."

191. Whenever a wrong or offence is committed and ingredients are satisfied and repeated, it evidently would be a case of 'continuing wrong or offence'. For instance, using the factory without registration and license was an offence committed every time the premises were used as a factory. Supreme Court in Maya Rani Punj vs. Commissioner of Income Tax, Delhi (1986)1 SCC 445 [LQ/SC/1980/319] , was considering, if not filing return within prescribed time and without reasonable cause, was a continuing wrong or not, Court held that continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as long as the default continued. The penalty is imposable as long as the default continues and as long as the assessee does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law. High Court of Delhi in Mahavir Spinning Mills Ltd. vs. Hb Leasing And Finances Co. Ltd., 199(2013) DLT 227 [LQ/DelHC/2012/5358] , while explaining Section 22 of Limitation Act, took the view that in the case of a continuing breach, or of a continuing tort, a fresh period of limitation begins to run at every moment of time during which the breach or the tort, as the case may be, continues. Therefore, continuing the breach, act or wrong would culminate into the 'continuing cause of action' once all the ingredients are satisfied. Continuing cause of action thus, becomes relevant for even the determination of period of limitation with reference to the facts and circumstances of a given case. The very essence of continuous cause of action is continuing source of injury which renders the doer of the act responsible and liable for consequence in law. Thus, the expressions 'cause of action first arose', 'continuing cause of action' and 'recurring cause of action' are well accepted cannons of civil jurisprudence but they have to be understood and applied with reference to the facts and circumstances of a given case. It is not possible to lay down with absolute certainty or exactitude, their definitions or limitations. They would have to be construed with reference to the facts and circumstances of a given case. These are generic concepts of civil law which are to be applied with acceptable variations in law. In light of the above discussed position of law, we may revert to the facts of the case in hand.

192. The settled position of law is that in law of limitation, it is only the injury alone that is relevant and not the consequences of the injury. If the wrongful act causes the injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. In other words, distinction must be made between continuance of legal injury and the continuance of its injurious effects. Where a wrongful act produces a state of affairs, every moment continuance of which is a new tort, a fresh cause of action for continuance lies. Wherever a suit is based on multiple cause of action, period of limitation will begin to run from the date when the right to sue first accrues and successive violation of the right may not give rise to a fresh cause of action. [Ref: Khatri Hotels Private Limited and Anr. vs. Union of India and Anr., (2011)9 SCC 126 [LQ/SC/2010/907] , Bal Krishna Savalram Pujari & Ors. vs. Sh. Dayaneshwar Maharaj Sansthan & Ors,: AIR 1959 SC 798 [LQ/SC/1959/35] , G.C. Sharma vs. Municipal Corporation of Delhi, (1979) ILR 2 Delhi 771 and Kuchibotha Kanakamma & Anr. vs Tadepalli Ptanga Rao & Ors., AIR 1957 AP 419 [LQ/TelHC/1956/7] ].

193. A cause of action which is complete in all respects gives the applicant a right to sue. An applicant has a right to bring an action upon a single cause of action while claiming different reliefs. Rule 14 of National Green Tribunal (Practice and Procedure) Rules, 2011 (hereinafter referred to as 'NGT Rules, 2011'), shows the clear intent of the framers of the Rules that multiple reliefs can be claimed in an application provided they are consequential to one another and are based upon a single cause of action. Different causes of action, thus, may result in institution of different applications and, therefore, there is exclusion of the concept of the 'joinder of causes of action' under NGT Rules, 2011. Multiple causes of action again would be of two kinds, one, which arise simultaneously and other, which arise at a different or successive point of time. In first kind, cause of action accrues at the time of completion of the wrong or injury. In later, it may give rise to cause of action or if the statutes so provide when 'cause of action first arose' even if the wrong was repeated. Where the injury or wrong is complete at different times and may be of similar and different nature, then every subsequent wrong depending upon the facts of the case may give rise to a fresh cause of action.

194. To this general rule, there could be exceptions. In particular, such exceptions could be carved out by the legislature itself. In a statute, where framers of law use the phraseology like 'cause of action first arose' in contradistinction to 'cause of action' simplicitor. Accrual of right to sue means accrual of cause of action for suit. The expressions 'when right to sue first arose' or 'cause of action first arose' connotes date when right to sue first accrued, although cause of action may have arisen even on subsequent occasions. Such expressions are noticed in Articles 58 of Limitation Act, 1963. We may illustrate this by giving an example with regard to the laws that we are dealing here. When an order granting or refusing environmental clearance is passed, right to bring an action accrues in favour of an aggrieved person. An aggrieved person may not challenge the order granting environmental clearance, however, if on subsequent event there is a breach or non-implementation of the terms and conditions of the environmental clearance order, it would give right to bring a fresh action and would be a complete and composite recurring cause of action providing a fresh period of limitation. It is also for the reason that the cause of action accruing from the breach of the conditions of the consent order is no way dependent upon the initial grant or refusal of the consent. Such an event would be a complete cause of action in itself giving rise to fresh right to sue. Thus, where the legislature specifically requires the action to be brought within the prescribed period of limitation computed from the date when the cause of action 'first arose', it would, by necessary implication, exclude the extension of limitation or fresh limitation being counted from every continuing wrong, so far, it relates to the same wrong or breach and necessarily not a recurring cause of action.

195. Now, we would deal with the concept of recurring cause of action. The word 'recurring' means, something happening again and again and not that which occurs only once. Such reoccurrence could be frequent or periodical. The recurring wrong could have new elements in addition to or in substitution of the first wrong or when 'cause of action first arose'. It could even have the same features but its reoccurrence is complete and composite. The recurring cause of action would not stand excluded by the expression 'cause of action first arose'. In some situation, it could even be a complete, distinct cause of action hardly having nexus to the first breach or wrong, thus, not inviting the implicit consequences of the expression 'cause of action first arose'. Supreme Court clarified distinction between 'continuing' and 'recurring' cause of action with some finesse in M.R. Gupta v. Union of India and others, (1995) 5 SCC 628 [LQ/SC/1995/818] . Court held:

"... The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that it the appellant's claim is found correct on merits. He would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.

The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Ors. v. Mattapalli, Raju and Ors. AIR (1950) FC 1 [] ."

196. Continuing cause of action would refer to the same act or transaction or series of such acts or transactions. The recurring cause of action would have an element of fresh cause which by itself would provide applicant the right to sue. It may have even be de hors the first cause of action or the first wrong by which the right to sue accrues. Commission of breach or infringement may give recurring and fresh cause of action with each of such infringement like infringement of a trademark. Every rejection of a right in law could be termed as a recurring cause of action. [Ref: Ex. Sep. Roop Singh v. Union of India and Ors., 2006 (91) DRJ 324 [LQ/DelHC/2006/1816] , M/s. Bengal Waterproof Limited v. M/s. Bombay Waterproof Manufacturing Company and Another, (1997) 1 SCC 99] [LQ/SC/1996/1949] .

197. The principle that emerges from the above discussion is that the 'cause of action' satisfying the ingredients for an action which might arise subsequently to an earlier event give result in accrual of fresh right to sue and hence reckoning of fresh period of limitation. A recurring or continuous cause of action may give rise to a fresh cause of action resulting in fresh accrual of right to sue. In such cases, a subsequent wrong or injury would be independent of the first wrong or injury and a subsequent, composite and complete cause of action would not be hit by the expression 'cause of action first arose' as it is independent accrual of right to sue. In other words, a recurring cause of action is a distinct and completed occurrence made of a fact or blend of composite facts giving rise to a fresh legal injury, fresh right to sue and triggering a fresh lease of limitation. It would not materially alter the character of the preposition that it has a reference to an event which had occurred earlier and was a complete cause of action in itself. In that sense, recurring cause of action which is complete in itself and satisfies the requisite ingredients would trigger a fresh period of limitation. To such composite and complete cause of action that has arisen subsequently, the phraseology of the 'cause of action first arose' would not effect in computing the period of limitation. The concept of cause of action first arose must essentially relate to the same event or series of events which have a direct linkage and arise from the same event. To put it simply, it would be act or series of acts which arise from the same event, may be at different stages. This expression would not de bar a composite and complete cause of action that has arisen subsequently.

198. In the present case, when the principles discussed above are applied, we find that though appellant is guilty of dumping hazardous waste containing chromium at the questioned site between 1995 to 2005 but the said dumped material has continued to lie there, leachate has percolated in the soil and has contaminated ground water. This percolation of leachate is continuous as also contamination of groundwater. This contaminated ground water through bore wells and wells is being used by the local people continuously. Its adverse effect has been noticed on account of various infirmities suffered by local people as noticed in the reports dated 25.09.2019 and 26.09.2019 submitted by the Committee of Justice Arun Tandon, former Judge. Dumped material still is lying there and its consequences of causing to environment as also to health of people are also continuous even till this date. That being so, it is a continuous cause of action hence, it cannot be said that environmental compensation determined by RO UPPCB, impugned in this Appeal, is vitiated in law on account of delay, latches or limitation.

199. We answer issue V in negative and against appellant.

ISSUES VI and VIII:

200. In view of the findings recorded in respect of issue IV, we have no hesitation in holding that neither the impugned order dated 28.05.2020, determining liability of environmental compensation of appellant as Rs. 46,67,80,837.50 can be sustained nor reports dated 30.09.2021, computing liability of environmental compensation as Rs. 33,83,27,196/- and dated 28.07.2022, computing liability of environmental compensation as Rs. 44,34,53,042/- can be sustained. The above order as also the reports, to the extent the same have determined environmental compensation of appellant, are modified by holding that the liability of appellant to pay environmental compensation is Rs. 25,39,68,750/- on the waste containing chromium quantified as 5643.75 MT. Order dated 28.05.2020 and reports dated 30.09.2021 and 28.07.2022 stand modified accordingly.

201. Issues VI & VIII are answered accordingly.

ISSUE VII:

202. We have held that appellant has violated the provisions of Water Act 1974, Air Act 1981, EP Act 1986 and HWMH Rules, 1989 issued under EP Act, 1986. The violation of the provisions of Water Act 1974, Air Act 1981 and EP Act 1986 is an offence under Sections 41, 43 and 44; Chapter 7 of Water Act 1974; Sections 37, 38 and 39 Chapter 6 of Air Act, 1981 and Section 15 of EP Act, 1986. Therefore, appellant is guilty of committing crime by committing offences under the aforesaid Statutes by, proceeding with its industrial unit for financial benefits. The money earned from the above commercial transactions having been used by appellant for its own benefit taking it as a lawfully earned money, therefore, it also amounts to an offence under Section 3 of Prevention of Money Laundering Act, 2002.

Offence under Prevention of Money Laundering Act, 2002:

203. When environmental norms are not observed and in violation thereof there is discharge and/or emission of pollutants causing pollution and thereby commercial activities for commercial gains continue, such activities also attract provisions of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA 2002' as amended from time to time).

204. PMLA 2002 was enacted pursuant to resolution no. S-17/2 adopted by General Assembly of United Nation at 17th Special Sessions held on 23.02.1990 on political declaration and global programme of action; and political declaration adopted by UNGA in the Special Session held on 8th to 10th June, 1998. It came into force however on 01.07.2005. The term "money laundering" and "proceeds of crime" are defined in Section-2(p) and (u) which read as under:

"2(p). "Money Laundering" has the meaning assigned to it in Section-3.

2(u). "Proceeds of Crime" means any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a "scheduled offence" or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value within the country or abroad.

[Explanation: for the removal of doubts, it is hereby clarified that proceeds of crime include property not only derived or obtained from the "scheduled offence" but also any property which may directly or indirectly be derived or obtained as result of criminal activity relatable to the "schedule offence";"

205. "Scheduled Offence" is defined in Section 2(y) and says;

"2(y). "Scheduled Offence" means-

(i) The offences specified under Part-A of the Schedule; or

(ii) The offences specified under Part-B of the Schedule, if the total value involved in such offences is one crore rupees or more; or

(iii) The offences specified under Part-C of the schedule."

206. Section 3 of PMLA 2002 talks of offence of money laundering and says:

"3. Offence of money laundering: whosoever directly or indirectly attempts to indulge or knowingly assists or knowing is a party or is actually involve in any process or activity connected proceeds of crime including in concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money laundering."

207. There is an explanation also inserted by Finance Act, 2019 w.e.f. 01.08.2019, but for the issue under consideration, it is not relevant, hence omitted.

208. Attachment of property involved in "money laundering" is governed by Section 5 of PMLA 2002 which permits attachment by Director or any other officer not below the rank of Deputy Director authorised by Director for the purpose of such attachment and he has reason to believe (to be recorded in writing) on the basis of material in his possession that any person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this chapter (by order in writing), may provisionally attach such property for a period not exceeding 180 days from the date of the order, in such manner as may be prescribed.

209. First proviso of Section 5(1) imposes a condition that no such order of attachment shall be made unless, in relation to the "Scheduled offence", a report has been forwarded to a Magistrate under Section 173 Cr.P.C. or a complaint has been filed by a person authorised to investigate the offence mentioned in that schedule, before a Magistrate or Court for taking cognizance of the "Scheduled offence".

210. There is an exception in 2nd proviso of Section 5(1) authorising Director or the officers authorised by him to attach any property of any person referred to in Sub-Section 1, if he has reason to believe (to be recorded in writing), on the basis of material in his possession that if such property involved in money laundering is not attached immediately, it is likely to frustrate proceeding under PMLA 2002.

211. Section 5(5) requires the Director or the other officer, who has provisionally attached property under Sub-Section 1 to file a complaint within 30 days from such attachment stating facts of such attachment before Adjudicating Authority which is appointed under Section 6.

212. Section 8 provides the procedure to be observed by Adjudicating Authority to pass an order confirming attachment of property under Section 5(1). When such order of confirmation is passed, attached property would remain under attachment till trial completes and if Special Court under PMLA 2002 recorded finding of conviction of commission of offence of money laundering, such property shall stand confiscated to the Central Government but where Special Court finds that offence of money laundering has not taken place or properties not involved in money laundering, it shall release such property to the person entitled to receive it.

213. Section 5 shows that except the cases covered by second proviso, no attachment is permissible unless report under Section 173 Cr.P.C. submitted to the Magistrate or complaint has been filed before the Magistrate or concerned to take cognizance of "Scheduled offence".

214. Schedule to PMLA 2002 as initially came into force on 01.07.2005, was having Part-A, divided in paragraph 1, dealing with Section 121 and 121(A) of IPC; paragraph-2 covering certain offences under Narcotic Drugs and Psychotropic Substances Act, 1985 and Part-B paragraph 1 offences under Sections 302, 304, 307, 308, 327, 329, 364(A), 384 to 389, 392 to 402, 467, 489A and 489B of IPC; paragraph 2 contains some offences of Arms Act, paragraph 3 referred to offences under Wild Life Protection Act 1972, Paragraph 4, offences under Immoral Traffic Prevention Act, 1956 and Paragraph 5, offences under Sections 7, 8, 9 and 10 of Prevention of Corruption Act, 1988 (hereinafter referred to as 'PCA 1988').

215. Thus, PMLA 2002, at the time of enforcement in 2005, did not cover Sections 120-B, 468, 420 and 471 IPC and Section 13 of PCA, 1988 and environmental enactments. In other words, offences under these Sections/Statutes were not "Scheduled offences" for the purpose of Section 3 PMLA 2002.

216. The Schedule underwent amendment for the first time vide Prevention of Money Laundering (Amendment) Act, 2009 published in Gazette of India, Extraordinary dated 06.03.2009. In Part A paragraph 1, Sections 489A and 489B were inserted. We are not concerned with the offences referred under paragraph 2 of the Schedule, hence amendments made therein are omitted. After paragraph-2, paragraph-3 and paragraphs-4 were inserted relating to offences under Explosive Substance Act, 1908 and Offences under Unlawful Activities (Prevention) Act, 1967. In Part-B, paragraph 1 was substituted and a number of offences of IPC were added and this included Sections 120-B, 420, 467 and 471 IPC. Some amendments were made in paragraph 3 and 5 of Part-B and thereafter, paragraphs 6 to 25 were inserted covering offences under several enactments which are not relevant for the purpose of issue before us. Part C was also inserted in the schedule to cover cross border offences and the same is also omitted. Even after this amendment, Sections 468 IPC and 13 PCA, 1988 were not "scheduled offence" so as to attract offence under Section 3 of PMLA 2002. The amendment was given effect from 01.06.2009.

217. Next amendment was made vide Prevention of Money Laundering (Amendment) Act, 2012 published in Gazette of India, Extraordinary dated 04.01.2013. Paragraph A part-1 of the Schedule was substituted adding some more offences of IPC. In fact, entire Part A was substituted by a new Part-A which had paragraphs 1 to 28 covering offences under various Statutes, some were earlier in Part A and also Part B and some newly added. Paragraph 8 Part 1 as substituted in 2012 covered offences under Sections 7, 8, 9, 10 and 13 of PCA, 1988. Thus, Section 13 was included therein only in 2013. In Part B, paragraphs 1 to 25 were omitted and in Part C serial No. 2 and entries relating thereto, were omitted. This amendment came into force from 15.02.2013.

218. The offences under environmental norms have been included in the Schedule to PMLA 2002 inasmuch as paragraph 23, 25, 26, 27 have been inserted by Section 30 of PML (Amendment) Act, 2012 which came into force on 15.02.2013 and said insertion of paragraphs are as under:

219. All these provisions relating to offences under various Environmental Statutes have been placed in part A of the Schedule. Application of PMLA 2002 in respect to the aforesaid offences has to be seen in the light of Section 3 read with schedule as amended vide Amendment Act, 2012.

220. In A.K. Samsuddin vs. Union of India, Writ Petition No. 15378/2016 decided on 19.07.2016, Kerala High Court said that the time of commission of the "scheduled offence" is not relevant in the context of the prosecution under the. What is relevant in the context of the prosecution is the time of commission of the of money laundering. It has to be established that the money involved are the proceeds of crime and having full knowledge of the same, the person concerned projects it as untainted property.

221. In Smt. Soodamani Dorai vs. Joint Director of Enforcement, Writ Petition No. 8383 of 2013 decided on 04.10.2018, a Single Judge of Madras High Court observed that substratal subject of the is to prevent money laundering and to confiscate proceeds of crime.

222. PMLA 2002 brings in a different kind of offence on the statute book. In Janta Jha vs. Assistant Director , High Court of Odisha held that even if an accused has been acquitted of the charges framed against him in Sessions Trial, a proceeding under PMLA 2002 cannot amount to double jeopardy where procedure and nature of proof are totally different from a criminal proceeding under IPC.

223. On the contrary in Rajeev Chanana vs. Deputy Director it was held by Delhi High Court that after acquittal of a person from a "Scheduled offence", trial for an offence under Section 3 of PMLA 2002 will not survive. Court said it is hard to imagine as to how a trial for an offence of money laundering can continue where the fundamental basis, i.e., the commission of a Scheduled offence has been found to be unproved.

224. The question of simultaneous investigation by Police or CBI or any other Investigating Agencies in respect of schedule offences and Enforcement Directorate (hereinafter referred to as 'ED') under Section 3 of PMLA 2002 was considered by a Single Judge (Hon'ble S.P. Garg, J) of Delhi High Court in Rohit Tandon vs. Enforcement Directorate in Bail Application No. 119 of 2017 and Crl.M.B. 121 of 2017. In the judgment dated 05.05.2017, Court found that Delhi Police registered FIR under Sections 420, 406, 409, 467, 468, 188 and 120-B on 25.12.2016 and very next date ED registered ECIR on 26.12.2016. Court said that presence of "Scheduled offence" is only a trigger point for initiating investigation under PMLA 2002. Act nowhere prescribes, if ED is debarred from conducting investigation under Sections 3 and 4 PMLA 2002 unless investigating agency concludes its investigation in the FIR or charge sheet is filed therein for commission of "Scheduled offence". The proceedings under PMLA 2002 are distinct from the proceedings of the "Scheduled offence". In the Investigation of FIR by Police, ED has no control. The proceedings under PMLA 2002 are not dependent on the outcome of the investigation conducted in the "Scheduled offences". More over to avoid conflicting and multiple opinions of court, Section 44 PMLA 2002 provides trial by Special Court in case of "Scheduled Offence" and offence under PMLA 2002. Delhi High Court relied on a judgment of Allahabad High Court in Sushil Kumar Katiyar vs. Union of India & Ors. wherein Allahabad High Court said:

"A person can be prosecuted for the offence of money laundering even if he is not guilty of "Scheduled offences" and his property can also be provisionally attached irrespective of the fact as to whether he has been found guilty of the "Scheduled offences". The prosecution is not required to wait for the result of the conviction for the "scheduled offences" in order to initiate proceedings U/s 3 of the PML Act. However, the person against whom, there is an allegation of the offence of money laundering, can approach appropriate forum, in order to show his bonafide and innocence that is not guilty of the offence of money laundering and has not acquired any proceeds of crime or any property out of the proceeds of crime."

225. Against the judgment of Delhi High Court in Rohit Tandon vs. The Enforcement Directorate, Appeal was filed in Supreme Court and judgment is reported in Supreme Court upheld, the order of High Court rejecting Bail. Then meeting further argument raised on behalf of Rohit Tandon that the incriminating material recovered, would not take the colour of proceeds of crime as there is no allegation or the prosecution complaint that un-accounted cash deposited by appellant was result of criminal activity, it was observed that the expression "criminal activity" has not been defined but very nature of the alleged activities of the accused referred to in the predicate offence are criminal activities. Court observed:

".... however, the stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens-rea. In that the concealment, possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a "scheduled offence". That would come within the meaning of Section 3 and punishable under Section 4 of the Act, being a case of money laundering."

226. Recently in P. Chidambaram vs. Directorate of Enforcement , Court considered scheme of PMLA 2002, and observed that money laundering is the process of concealing illicit sources of money and launderer transforming the money proceeds derived from criminal activity into funds and moved to other institution or transformed into legitimate asset. It is realized world around that money laundering poses a serious threat not only to the financial system of the country but also to their integrity and sovereignty. "Schedule offence" is a sine qua non for the offence of money laundering which would generate the money i.e., being laundered.

227. In the present case, when environmental norms were not followed, by not operating ETP or by discharging partially or totally untreated pollutant or by causing other violations, this resulted in commissioning of Scheduled offence and revenue earned by committing such crime is proceeds of crime as defined in PMLA 2002 and by showing it part of business proceeds in accounts amounts to projecting or claiming it as untainted property. The entire activity is covered by Section 3 of PMLA 2002.

228. It appears that initially PMLA 2002 was enacted so as to cover activities of terrorist, illegal traffic in narcotics, enemies of the country etc., applying to a very limited number of statutes, Enforcement Directorate had been taking action under PMLA 2002 in a narrow sphere. It has forgot to take note of the fact that scope of PMLA 2002 has been enhanced or widened, a lot, at least after amendment Act of 2012 w.e.f. 15.02.2013. More than nine and half years have passed but not a single action has been taken by Enforcement Directorate, against violators committing offences under environmental Statutes which have been included in the Schedule, part A of PMLA 2002. The offences under Environmental Acts, as such are non-cognizable but under PMLA 2002, offences are cognizable. Since Competent Authority has never resorted to proceed against violators of environmental Statutes despite committing offences thereunder, which are included in PMLA 2002, this inaction has encouraged polluters to continue violation with impunity. Parliament's intention of treating environmental violations as very serious offences is writ large from the fact that, offences under environmental laws as noticed above, have been included in Schedule, Part A of PMLA 2002 yet enforcement machinery has frustrated entire attempt. It is incumbent upon the Competent Authorities regulating and enforcing PMLA 2002 to take action against such violators, if not against small violators, at least against substantial resourceful bigger proponents whose violations are liable to cause huge damage to environment as also the inhabitants. At least matters of large scale industries and medium scale industries should have been examined by Competent Authority under provisions of PMLA 2002.

229. We do not intend to delve more on the above aspect. Our endeavor was to highlight inapt attitude and apathy towards enforcement of laws enacted to give teeth to environmental laws but responsible authorities find it convenient to put these laws in hibernation.

230. We accordingly, answer issue VII holding that appellant having violated the provisions of Water Act 1974, Air Act 1981 and EP Act 1986, therefore is also liable for action under PMLA 2002.

231. Issue VII is answered in affirmative and against appellant.

232. In view of the above discussion, we allow Appeal partly in the manner as under:

I. Appellant shall pay and deposit environmental compensation of Rs. 25,39,68,750/- (Rs. twenty five crores, thirty nine lacs, sixty eight thousands, seven hundred and fifty only) with UPPCB within three months, failing which, recovery proceedings in accordance with law, shall be initiated by the Competent Authority without any further delay.

II. After recovery of the said amount, respondent shall utilize the same for recovery, restoration and remediation of the environment which has been deteriorated and damaged by dumping hazardous waste comprising Chromium at the questioned site.

III. For the purpose of preparing an action plan for use of amount of environmental compensation for remediation of environment, we constitute a joint Committee comprising UPPCB, CPCB and District Magistrate, Kanpur Dehat who shall prepare the plan for remediation of environment and use of environmental compensation for the said purpose. The Action plan may contain details of activities planned, implementation schedule with specific timeline, budgetary provision for each activities, monitoring mechanism etc. The above plan shall be prepared within two months and executed within next six months from the date of this order.

IV. An action taken report with regard to recovery and utilization of the amount recovered shall be submitted to the Registrar General, NGT, Principal Bench, New Delhi by 15th December 2023 and if the Registrar General finds necessary, the matter shall be placed with action taken report for appropriate direction of this Tribunal.

233. All pending IAs shall stand disposed of.

234. A Copy of this order be forwarded to Chief Secretary, UP; Additional Chief Secretary, Industries, UP; Additional Chief Secretary, Environment, UP; CPCB; UPPCB; DM, Kanpur Dehat and Enforcement Directorate by email for information and compliance.