The Delhi Pollution Control Committee (DPCC), the authority responsible for the control and abatement of pollution in Delhi, appears to have misused its brief from the National Green Tribunal (NGT) in the imposition of environmental damage compensation (EDC) on polluting entities.
Since July 2019, the pollution regulatory body has been imposing the EDC on numerous businesses, including farm houses, banquet halls, small non-bedded clinics and nursing homes and auto service centres, without explanation or reason and by way of non-speaking orders, which has hurt these industries severely.
The EDCs imposed by the DPCC range from Rs 5 lakhs to Rs 80 lakhs. Some show cause notices have been sent to businesses which were actually closed during the lockdowns imposed by the state and Central governments to limit the spread of the COVID-19 virus, which means that they could not have polluted the environment at that time.
Most of the businesses that have been served these notices employ up to 25 people and have no previous violations of environmental laws to their names, despite periodic and random inspections by the DPCC. All these businesses had been granted permission to operate by the DPCC in the first place on the grounds that they were non-polluting.
I have represented 27 such businesses before the Delhi high court, which set aside the EDC impositions in every case.
In at least 21 instances, the EDC orders passed by the DPCC were set aside on the very first day of the hearing.
Because the power and jurisdiction of the DPCC to impose the EDC under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 were challenged via writ petitions, the DPCC was directed by the court to consider writ petitions as representation and to pass speaking orders after granting personal hearings.
However, in conflict with the orders passed by the high court (which makes the DPCC liable for the initiation of contempt action), the DPCC continues to impose the EDC on businesses within its jurisdiction.
In June this year, for example, banquet halls in Delhi that had been converted by the state government to makeshift hospitals and quarantine centres for patients infected by the COVID-19 virus were served show cause notices by the DPCC. These banquet halls operated without profit as COVID-19 hospitals till August 21 as the pandemic raged in Delhi.
In July 2020, an auto service centre in Okhla was penalised by the DPCC via the EDC for alleged violations committed in January 2020 when the unit was still under establishment with a valid consent to establish duly granted by the DPCC. The unit had been inspected on March 19 and the consent to operate had been granted on March 20 because there was no violation at all.
On March 22, the ‘janta curfew’ was imposed on Delhi; on March 23, the state was put under lockdown by the Delhi government and on March 25, the nationwide lockdown came into effect and remained in place till May 31, 2020.
Unlock 1 started on June 1, 2020; the unit could only get its electricity connection on June 18, after which it began operations – only to learn that the DPCC had imposed an EDC on it.
Elsewhere, a banquet hall at Najafgarh Road Industrial Area was sealed by the DPCC on September 16, 2019, for non-payment of the EDC. The EDC had been imposed on the banquet hall the very same day – September 16, 2019. This banquet hall had been operated by a tenant who had abandoned the property six months before the EDC was imposed and had defaulted on the rent.
Despite an order from the high court in February 2020, which was followed by a personal hearing by the DPCC on the directions of the high court, which in turn was followed by the compliance of landlord of the banquet hall in June 2020, after Unlock 1 came into effect, the DPCC has not moved on the issue.
The landlord, who lives on the income generated from renting the banquet hall, is now desperate.
Where it began
The trouble started in 2018-2019 when the NGT, among its various orders, directed the DPCC and other state pollution boards to devise a plan in which polluting units of various industries would pay an environmental damage compensation or EDC as penalty. The penalty was meant to be imposed after a polluting unit had been identified via inspections and by following due process.
In 2018, the DPCC was fined Rs 50 crores by the NGT for “failure to discharge its duties” due to its non-compliance with the Master Plan of Delhi 2021 and for its disregard to the directions issued by the NGT for the relocation of steel pickling units from inside Delhi to the outskirts of Delhi. The NGT bench noted in its order: “The authorities have assumed that nothing can happen if they continue to defy the law to benefit polluting industries at the cost of public health.”
In this order, the NGT also warned that it could consider sending senior officials of the DPCC to jail for failing to implement the orders of the tribunal.
However, the NGT allowed the Delhi government to recover the Rs 50 crores it had been fined from either industry owners or the officials responsible for the lapse.
This order was a clear indictment of the DPCC. It had been issued to serve as a deterrent for future issues and it allowed the DPCC to recover the amount of the fine in the usual way.
But the DPCC seems to have read just one portion of the fine recovery portion of the order which said that the fine could be recovered from industry owners or the officials responsible for the lapse and began imposing the EDC on units that operate in Delhi’s industrial areas.
Principles of law
It is a well-settled principle under the Air and Water Acts as well as by way of judicial pronouncements that neither the DPCC nor any other pollution control board has the power to impose an EDC or a fine. The concept of the polluter having to pay the penalty is not a law.Only the courts can impose such a penalty by way of the EDC.
The DPCC, it appears, chose not to inform the NGT after receiving the NGT’s order that the power to impose the EDC rests only with courts, which may or may not impose the penalty on the basis of a case duly instituted and heard properly to a logical conclusion.
Instead, the DPCC seems to have appointed itself a judge and imposes the EDC on the basis of the NGT’s directions for the recovery of the fine it has to pay. Unfortunately for the businesses the DPCC labels as polluters, once the charge is made, even the NGT shows no mercy whether or not the business is actually polluting, because the DPCC has labelled it as polluting.
Perhaps the DPCC could learn from the Municipal Corporation of Delhi (MCD). In 2016-17, when the NGT directed the MCD to invoke the ‘Polluters Pay’ principle, notices were sent to alleged violators to appear before an NGT bench headed by Justice Swatantra Kumar. Only those units that had actually violated the pollution laws were penalised after following the due process of law.
Though Arvind Kejriwal, chief minister of Delhi, and Gopal Rai, the state’s environment minister, are aware of the issues with the DPCC, it seems the Delhi government is more concerned with the errors of law and facts committed by the pollution control body than with the fate of businesses wrongly labelled as polluters.
But it is about time that the Delhi chief minister intervened in the matter. The DPPC must file an affidavit before the NGT expressing its inability to invoke the ‘polluters pay’ principle on the grounds of lack of power and jurisdiction. If the NGT directs the DPCC to invoke this principle, the pollution control body must inform the NGT accordingly of its actual powers.
And if the power to invoke this principle is to be exercised by the DPCC, amendments in the Air Act, Water Act and Environment Protection Act are mandatory and these must be carried out by parliament. Until such amendments are made, only courts can exercise the power to invoke the ‘polluter pays’ principle after a proper hearing.
The bottom line is that polluters must pay. But only after the facts are ascertained and the due process of law is followed.
Rahul Kumar is an advocate practicing at the Supreme Court of India and the High Court of Delhi.
Disclaimer: The author is former standing counsel of the DPCC and former senior panel counsel of the Central Pollution Control Board.