Case BriefsSupreme Court

Supreme Court: In an important case regarding environment Law the 3-judge Bench comprising L. Nageswara Rao, B. R. Gavai and Aniruddha Bose, JJ., revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem. The Court remarked,  

“…in case of doubt, protection of environment would have precedence over the economic interest.” 

Factual Backdrop  

The instant case relates to the recommendation made by the National Board for Wildlife (NBWL) for wildlife clearance for doubling of 26 km stretch of the railway line in Western Ghats from Castlerock in Karnataka to Kulem in Goa passing through Bhagwan Mahaveer Wildlife Sanctuary, subject to fulfilling certain conditions.  

The proposal is for doubling the existing railway line on the land involving 120.875 hectares of land within protected area and 113.857 hectares of land in non-protected area reserved forest 7.018 hectares.  

The recommendation of NBWL was assailed by Goa Foundation before the Central Empowered Committee (CEC) for being in violation of the order passed by the Supreme Court on 05-10-2015. The Goa Foundation contended that the project involves diversion of significant area of forest land and sanctuary land and would entail further destruction of the Sanctuary/National Park and wildlife. Further, a large number of trees will have to be felled within the Bhagwan Mahaveer Wildlife Sanctuary and also, the integrity of the protected area and wildlife sanctuary would be severely affected. The Goa Foundation also contended before the CEC that assessment of proper impact on wildlife habitat and biodiversity was never carried out before NBWL approved the project. 

Pertinently, western ghats eco-system which is one of world’s eight hotspots, which spreads across 9 National Tiger Reserves, 20 National Parks and about 68 Wildlife Sanctuaries and the landscape forms one of the largest and most contiguous Protected Area networks in the country.  

CEC Recommendation  

The CEC recommended revocation of the permission granted by the Standing Committee for NBWL for doubling the railway line passing through the ecologically sensitive Western Ghats from Tinaighat-Castlerock in Karnataka to Kulem in Goa as such permission was in violation of the guidelines issued by the Ministry of Environment, Forest and Climate Change under the Wildlife Protection Act, 1972 and the order dated 05-10-2015. 

Noticing that the proposed railway doubling line is parallel to the existing railway line which passes through same forest along the same corridor, the CEC was of the opinion that the additional line is not likely to add either to the turnaround time of the train or loco or to the speed of the train. Therefore, the CEC recommended that the permission granted by the Standing Committee of the NBWL should be revoked, some of the reasons cited by the CEC were as following: 

  • The report of the Standing Committee of NBWL did not obtain any specific recommendation on mitigation measures from the Wildlife Institute of India, Dehradun before approving the proposal in respect of the Goa portion.  
  • The opening of the forest cover in the ecologically sensitive Western Ghats along the existing line is likely to invite light-demanding invasive weeds like Mikania species which colonise fast in the open area and spread to the nearby forest canopy and destroy the natural forest;  
  • The increased number of trains and wider openings through the ecologically sensitive Western Ghats for laying the track will further fragment the habitat and will make the movement of wildlife including arboreal animals across the railway line much more difficult and dangerous and is bound to result in high casualties amongst the wildlife;  
  • The railway line cuts across the most important animal corridor in the Western Ghat landscape between Karnataka and Maharashtra through the State of Goa and will be a serious impediment to the movement of long-ranging animals like tiger and elephant.  
  • The approval by NBWL to go ahead with the project has been granted in respect of Goa Portion without first obtaining the advice of NTCA as statutorily required under section 38 (0) of the Wild Life (Protection) Act, 1972;  

Analysis and Findings 

Relying on Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647, the Court stated that the ‘Precautionary Principle’ is an essential feature of the principle of ‘Sustainable Development’. The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. The Court reiterated that in case of doubt, protection of the environment would have precedence over the economic interest. 

Available Alternatives  

Rejecting the Rail Vikas Nigam Ltd.’s (RVNL) contention that there is a likelihood that the requirement of coal and other raw materials would be doubled in the future, the Court, affirming the views taken by CEC stated that the requirement of coal can be met by utilising the Krishnapatnam port which is a viable alternative for transportation of coal.  

The Court opined that the CEC was right in its conclusion that the proposal for the doubling of the railway line should be revoked for the following reasons:  

  • At present the Konkan railway line gives excellent connectivity to Northern and Southern parts of India.  
  • Consequent to changes in government policy to discourage import of coal there will be reduction in the coal import which currently forms more than 90 % of goods traffic from Murmagoa Port;  
  • The estimate of projected increase in traffic from Karnataka to Goa furnished by the railways is not based on facts and is without any sound reasoning and as statistics shows mostly includes empty rakes returning to Goa; 
  • There are alternative ports like Krishnapatnam in east coast available with better rail connectivity for transport of goods to and from industrial belt of northern Karnataka and the capacity of the same is yet to be fully utilized.   
  • The connectivity between Goa and Karnataka is being strengthened/improved by way of 4 laning of NH-4A along the same route and by the development of new airport. 

“In view of the difficult terrain having sharp curves and gradient as high as 1:37 for the proposed project, any further construction would invite a great disaster in the sensitive areas of Western Ghats as well.”  

Further, RVNL has also proposed to construct under-passes/overbridges at identified locations of track crossings by wild animals to ensure safe crossings of tracks by animals, however, in its report, the CEC submitted that it was noticed during the site visit that it was not possible to construct any sort of under-passes at the said location. 

Directions to RVNL  

The Court noted that the landscape in which the railway line is proposed connects the three States of Goa, Karnataka, and Maharashtra, however, there was no viability report regarding Goa part. The Court expressed, 

“The Standing Committee of NBWL ought to have sought for a report from NTCA on the Goa part of the project before granting approval for the doubling of the railway line between Castlerock to Kulem in view of the fact that it is an important tiger corridor where instances of killing of tigers have been reported.”  

Affirming the recommendations made by the CEC regarding the necessity of taking into account the actual loss of the wildlife habitat by the construction activity for the doubling of the railway line for which heavy machinery would have to be moved and crusher units will have to be established for dumping construction material, the Court made following directs to RVNL:  

  • Conduct a detailed study on the viability of the project for the Goa part regarding impact of the proposed project on the biodiversity and ecological system of the protected areas under the wildlife sanctuary.  
  • Conduct an assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature, etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures, etc.), movement of trains, human-wildlife interactions before considering the project.  
  • Provide a credible data, supported by an independent and credible source for the projections that are given by RVNL relating to the traffic between Karnataka and Goa project for the period 2022-2023 and 2030-2031 and an explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project.  
  • Conduct an independent and detailed assessment of the cumulative impact of the project for the entire stretch from Tinaighat to Kulem.  

Conclusion  

For the foregoing reasons, the Court upheld the conclusion of the CEC and revoked the approval granted by the Standing Committee of NBWL for doubling the railway line between Castlerock to Kulem.  

However, the Court granted RVNL liberty to carry out a detailed analysis on the impact of the proposed project on the biodiversity and ecology of the protected areas under the wildlife sanctuary and submit a fresh proposal to the Standing Committee of NBWL which shall be considered in accordance with law.  

[T.N. Godavarman Thirumulpad v. Union of India, 2022 SCC OnLine SC 583, decided on 09-05-2022]  


Kamini Sharma, Editorial Assistant has put this report together

Hot Off The PressNews

The National Human Rights Commission, India has taken suo motu cognizance of a media report on disappearing water bodies in Delhi due to alleged unplanned growth and negligence by the authorities.

Notices have been issued to the Chief Secretary, Government of NCT of Delhi and the Vice-Chairman, Delhi Development Authority, DDAcalling for a detailed report in the matter within six weeks.

The Commission has observed that the issue raised in the media report is a matter of concern. There are laws and guidelines to safeguard such vital components of the environment. The alleged negligence by the authorities tantamount to violation of human rights, as the water bodies and wetlands are a vital part of the hydrological cycle, which supports rich biodiversity and provides a wide range of ecosystem services such as water storage, water purification, flood control, erosion control and microclimate regulation etc. It also helps mitigate urban floods.

The Commission has also noted that on 23rd April, 2019, Wetland Authority was constituted under the chairpersonship of the Chief Secretary in Delhi for conservation and management of wetlands.

According to the media report, the said waterbodies, which play a major role in maintaining the ecological balance in the region have either been encroached upon, concretised, or polluted with sewage. Delhi has reportedly 1,043 identified waterbodies belonging to different authorities and according to the reported official data, 169 of them have been either infringed on or destroyed. Giving example of a waterbody in Khichripur area, the media report says that though it has been included in the official record for years but it is yet to be reclaimed or rejuvenated.

It is also mentioned that out of these 169 encroached waterbodies, a total of 103 belonged to the Delhi Development Authority. The DDA reportedly owns 836 waterbodies, which is the highest number in the city followed by the Revenue Department, which has a total 131 under its ambit. Further, quoting the Centre for Science and Environment, the media report said that according to a 1997 survey, there were 1,000 waterbodies in Delhi, but at present less than 700 remain.


National Human Rights Commission

[Press Release dt. 3-3-2022]

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal, New Delhi (NGT): The Coram of Justice Adarsh Kumar Goel (Chairperson) and Justice Sudhir Agarwal (Judicial Member), Prof. A. Senthil Vel (Expert Member) and Dr Vijay Kulkarni (Expert Member) took suo moto cognizance based on media report highlighting the damage to the environment in eco-sensitive Himalayan States of India due to unregulated tourism.

Damage to the environment in Eco-Sensitive Himalayan States

Present matter was taken up in light of a media report to the effect that there was huge damage to the environment in eco-sensitive Himalayan States of India on account of unregulated tourism activities which needed to be regulated and checked to effectuate the Sustainable Development principle.

It was stated that, while tourism generates huge income and also employment, it also results in the generation of huge waste which is not scientifically handled, resulting in damage to the fragile ecosystem of the Himalayas.

Noting the unsatisfactory situation, Tribunal held that remedial action needs to be taken.

Hence, G.B. Pant National Institute of Himalayan Environment, Almora which is tasked with studies of Himalayan region in particular, which includes Jammu & Kashmir, Himachal Pradesh, Uttarakhand, Sikkim, West Bengal Hills, Meghalaya, Assam Hills, Tripura, Mizoram, Manipur, Nagaland and Arunachal Pradesh to undertake study and to update any study already conducted in light of the inputs available in the above media report.

Additionally, the Coram directed that a report in the above regard be provided to the Chief Secretaries of 12 States in the Himalayan region as well as to the Secretary, Environment and Secretary, Tourism, Government of India for further action.

The Secretary, Environment, Government of India shall conduct an online meeting with the Chief Secretaries of 12 States within one month of the receipt of the above-said report to steer preparation of appropriate action plans in all the 12 States, dealing with mitigation measures to offset the adverse impact of tourism activities on the environment.

Compliance to be filed within 6 months. [ News item published in The Hindu dated 27.02.2022 titled “Tourism has brought economic prosperity to the Himalayan region, but the environmental cost has been catastrophic”, In re., 2022 SCC OnLine NGT 87, decided on 9-3-2022]

Legal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Appellate Tribunal for Electricity (APTEL)


State commission disallows benefit of increase in the tariff based on the change in law provision; Tribunal directs reconsideration

A Coram of R.K. Gauba (Officiating Chairperson) and Sandesh Kumar Sharma (Technical Member) decided on an appeal which was filed by Solar Power Project Developer (“SPD”) assailing order passed by respondent Bihar Electricity Regulatory Commission (“the State Commission”) disallowing the benefit of increase in the tariff based on the change in law provision with respect to increased Operation and Maintenance (O&M) costs of its 10MW solar power generating system.

Read full report here…


Armed Forces Tribunal (AFT)


AFT grants war injury pension to soldier who sustained injuries resulting in disability during Operation Hifazat

The Bench of Justice Dharam Chand Chaudhary (Member J) and Vice Admiral HCS Bisht (Member A), granted war injury pension to the ex-serviceman who had sustained injuries resulting in disability during Operation Hifazat.

Read full report here…


Arbitral Tribunal, New Delhi


Arbitral Tribunal finds SJDA at fault; directs to refund bid amount of Rs 84.24 crores to the claimant in New Township Project

“No permission for conversion of land was obtained and, therefore, even if all other conditions were fulfilled, the Claimant-Developer could not have commenced construction activities on the agricultural lands without obtaining conversion of land use.”

Read full report here…


 Competition Commission of India (CCI)


Apple charging a commission of up to 30% on all payments made through its in-app purchase system, is a violation of its dominant position? CCI orders investigation 

“Some consumers may have preference for closed ecosystem like Apple and others may have a preference for open ecosystems like that of Google.” 

Read full report here… 

Why did CCI suspend the Amazon-Future deal? Detailed analysis of CCI order imposing Rs 202 crores penalty on Amazon

“Amazon had misled the Commission to believe, through false statements and material omissions, that the Combination and its purpose were the interest of Amazon in the business of FCPL.”

Read full report here…

Is Google abusing dominant position in news aggregation? CCI gives prima facie findings; discusses Snippets, Mirror Image Websites, Paywall Options, etc.

“Google appears to operate as a gateway between various news publishers on the one hand and news readers on the other. Another alternative for the news publisher is to forgo the traffic generated by Google for them, which would be unfavourable to their revenue generation.”

Read full report here…


 Customs Excise & Service Tax Appellate Tribunal (CESTAT)


“Obiter dictum” not legally binding as precedent; jurisdictional commissioner cautioned for filing frivolous applications

Suvendu Kumar Pati (Judicial Member) dismissed an appeal which was filed in response to the order passed by this Tribunal for rectification of mistake on the ground that the order to the extent of availment of service of outdoor catering was not proper.

Read full report here…

Jurisdiction for claim of refund filed/initiated to be dealt under the provision Central Excise law and not by the provision of CGST law

Ashok Jindal (Judicial Member) dismissed the application filed by the Revenue (CCE & ST, Panchkula) for ratification of mistake in a final order by the Tribunal which was noticed by the Applicant. The Tribunal dealt with two issues (a) whether to ratify previous order & (b) to deal with the jurisdiction

Read full report here…

Is there any provision under Cenvat Credit Rules, 2004 or Finance Act, 1994 for reversal of CENVAT credit for services provided for which no consideration is received by an assessee? CESTAT analyses

“CENVAT Credit Rules or Finance Act there was no provision for reversal of CENVAT credit for the services provided for which no consideration for service provided was received by an assessee.”

Read full report here…


District Consumer Disputes Redressal Commission, Kolkata


Consumer cannot be forced to pay “service charge” in a restaurant: Consumer Forum finds conduct of restaurant contrary to principles of Consumer Protection Act

“The OPs must have been aware of the guidelines of Fair Trade Practice related to changing of service charge from the consumers by hotels/restaurant issued by Department of Consumer Affairs, Government of India, inter alia, stipulating that service charge on hotel and restaurant bill is “totally voluntarily” and not mandatory.”

Read full report here…


Income Tax Appellate Tribunal (ITAT)


If lessee is not actual owner of property, can actual rental expenses be claimed on return of income? ITAT decides

“The assessee-company has merely taken the assets on lease from the owner, and it is accordingly eligible to claim actual rental expenses in the return of income.”

Read full report here… 

Can merely disowning bank accounts exempt assessee from paying tax? Read why ITAT approved addition of Rs 12.81 Crores under S.68 of Income Tax Act

“Merely disowning the bank accounts by the assessee does not lead to the conclusion that the accounts are not maintained by him when there is a direct evidence contrary to the contention of the assessee.”

Read full report here…


 National Consumer Disputes Redressal Commission (NCDRC)


Homebuyers cannot be expected to wait indefinitely for taking possession: NCDRC allows consumer complaint against Builder, directs refund, imposes costs

Commission dealt with a complaint filed under Section 21 read with Section 2(c) of the Consumer Protection Act, 1986 by the complainant in respect of a plot allotted to him promoted by the OP, claiming deficiency of service due to delay in handing over possession of the plot allotted and claiming refund of amount deposited with compensation.

Read full report here… 

Insurer refuses to issue insurance policy as Risk Confirmation letter obtained on concealment of material fact by Insurance Broker: Policy will be vitiated? NCDRC answers

“Section 19 of Contract Act, 1872, provides that when the consent of an agreement is caused by coercion, fraud, or misrepresentation, the agreement is voidable at the option of the party whose consent is so caused.”

Read full report here…

Plastic pieces found in slices of bread, but compensation denied to consumer. Read why NCDRC set aside State Commission’s order of compensation

Ram Surat Maurya (Presiding Member) addressed a matter wherein Britannia was alleged to have pieces of plastic in its bread, but the complainant failed to prove that the bread was manufactured by the said company.

Read full report here…

Minor treated for “Measles” instead of “Stevens-Johnson Syndrome” due to wrong diagnosis and leading to medical negligence: Read detailed report on NCDRC’s decision

“The patient at her young age of 12 years suffered very serious and potentially fatal SJ syndrome. It was the patient’s sheer good luck that she survived in spite of such grossly inappropriate/inadequate treatment at every stage.”

Read full report here…


National Company Law Appellate Tribunal (NCLAT) 


Is it proper for NCLT to record finding regarding default when RP is yet to consider it and submit report? NCLAT discusses Ss. 95, 97, 99 IBC

“…there cannot be any dispute with the statutory scheme as contained in Section 97 that when application is filed by the Resolution Professional under Section 95, the Adjudicating Authority shall direct the Board within seven days of the date of the application to confirm that disciplinary proceedings pending against the Resolution Professional or not and the Board was required within seven days to communicate in writing either confirming the appointment of the Resolution Professional or rejecting the appointment of the Resolution Professional and nominating another Resolution Professional.” 

Read full report here…

Aggrieved with the categorisation as ‘unsecured creditor’, Tribunal secures ‘secured creditor’, having relinquished the security interest

The Coram of Ashok Bhushan J, (Chairperson), and Dr Alok Srivastava (Technical Member) while accepting the appeal and rejecting the claim of the respondent, the Tribunal was of the opinion that the Adjudicating Authority committed an error in rejecting the claim of the appellant to be ‘secured creditor’.

Read full report here…

Is approval with 90% vote of CoC required before allowing withdrawal of CIRP application even where CoC was not yet constituted? NCLAT clarifies law on S. 12-A IBC 

“…when the application is filed prior to the constitution of Committee of Creditors, the requirement of ninety percent vote of Committee of Creditors is not applicable and the Adjudicating Authority has to consider the Application without requiring approval by ninety percent vote of the Committee of Creditors.”

Read full report here…

Dominant position and Predatory Pricing or Win-Win for riders and drivers? NCLAT upholds CCI’s decision

“We do not think that Ola could operate independently of other competitors in the relevant market, and hence it did not enjoy a dominant position in the market.”

Read full report here…

Once Adjudicating Authority approves Resolution Plan, does it still remains a confidential document? Read what NCLAT says

“The category of creditors including the Members of the suspended Board of Directors or the partners of the corporate persons, who are entitled to participate in the meeting of the Committee of Creditors are entitled to receive copies of all documents.”

Read full report here…


 National Green Tribunal (NGT)


Rampant noise pollution, incessant use of horns; a Deplorable state of affairs! NGT finds Rajasthan in contempt of Supreme Court’s order 

While addressing the issue of pressure/air horns and motor vehicles being driven with intolerable sound in Rajasthan, the Bench comprising of Justice Sheo Kumar Singh (Judicial Member) and Dr. Arun Kumar Verma (Expert Member) found the State of Rajasthan in contempt of the Supreme Court’s order and issued notice to the state government to reply within three weeks.

Read full report here…


Securities Exchange Board of India (SEBI)


Twitter, Telegram and the tattered chances-Illicit act of swindlers recommending stock tips on social media; Tribunal acts immediately

“The tips circulated through the Channel create an inducing impact which are then followed by the subscribers and ironically, such stock tips may also prove to be true, if large number of recipients of such tips believe it and collectively act on it. Slowly and gradually, after seeing the price of the said thinly traded scrip actually rising, more and more subscribers start believing in the tips and start acting on it, which further strengthens the belief of such tips being genuine, as large number of individuals end up acting on such tips and by their collective buying actions, convert the deceitful, specious and baseless tips to realty”

Read full report here…

‘Billionaire’ dream turns into dread-Unauthorsied investment advisory amounted to fraud & misrepresentation

S.K. Mohanty, Whole Time Member while affirming an ex-parte interim order of SEBI, was of the view that the activities of the Noticees, Billionaire Solutions Pvt. Ltd. (Sole proprietor Akash Jaiswal) was covered within the definition of “fraud” defined under regulation 2(1)(c) of the PFUTP Regulations, 2003. And therefore was held liable for the violation of provisions of Section 12A (a), (b), (c) of the SEBI Act, 1992, Regulations 3 (b), (c) & (d), 4(1), 4(2)(k) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 (PFUTP Regulations, 2003).

Read full report here…

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (Central Zone Bench): While addressing the issue of pressure/air horns and motor vehicles being driven with intolerable sound in Rajasthan, the Bench comprising of Justice Sheo Kumar Singh (Judicial Member) and Dr. Arun Kumar Verma (Expert Member) found the State of Rajasthan in contempt of the Supreme Court’s order and issued notice to the state government to reply within three weeks.

The applicant had approached the Tribunal with a social cause pertaining to failure of the State to ensure effective implementation of laws related to noise pollution. To point out the deplorable state of affairs on the rampant noise pollution in the State which majorly emanates from vehicles either through incessant use of horns and modified exhausts, the applicants had submitted various State recorded data, environmental and motor laws and recent news reports before the Tribunal.

The applicant submitted that as per Rule 3(3) of Noise Pollution (Regulation and Control) Rules, 2000 formed under the Environment (Protection) Act, 1986, respective State Governments are responsible for abatement of noise radiating from vehicular exhausts and horns and to ensure that, Ambient Air Quality Standards, scheduled under the Rules are realized.

Further, the applicant contended, even otherwise State inaction on such crucial issue culminated to contempt of Court as there was non-compliance with the directions of the Supreme Court in Balwant Singh v. Commissioner of Police, (2015) 4 SCC 801, wherein while dealing with the issue of rampant and unchecked noise pollution in the State of Rajasthan, in particular with respect to State capital i.e., Jaipur, the Court had directed compliance of its earlier judgment in, Noise Pollution – Implementation of the Laws for restricting use of loudspeakers and high volume producing sound systems; In re, (2005) 5 SCC 733, wherein State Governments were directed to ensure the following:

  1. Limit noise sources to 10 dB(A) above the ambient noise standards for the area or 75 dB(A), whichever is lower; and
  2. Prohibit use of horn during night (between 10 p.m. and 6 a.m.) in residential areas except in exceptional circumstances; and

iii. Make provision for seizure and confiscation of any noise source creating noise beyond the permissible limits.

The issue had also been addressed by the National Green Tribunal (Principal Bench), in Hardeep Singh v. South Delhi Municipal Corpn., O.A. No. 519/2016 (P.B.), wherein directions were issued to Central Pollution Control Board (CPCB) to devise the scale of compensation on the basis of ‘Polluter Pays’ principle to curb the menace of noise pollution and ensure implementation of the mandate and spirit of Rules. Resultantly, the CPCB had issued a directive that in the event of violation of Rules, imposition of fine of Rs. 10,000/- and seizure of polluting source will be undertaken. Pertinently, a nationwide directive dated 27/04/2021 was also issued to all the State P.C.B. to implement and ensure compliance of ‘Scales of Compensation’ with immediate effect on receipt of the directive.

Relying on the fact that the direction on pan India level had already been issued by Principal Bench of NGT in Hardeep Singh’s case, the found the State in contempt and directed to comply and follow the guidelines issued by the Supreme Court, NGT (Principle Bench) as well as by the CPCB for monitoring and controlling the noise pollution. [Consumer Unity & Trust Society, Jaipur v. State of Rajasthan, Original Application No.79 of 2021, decided on 12-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Applicants: Bhaskar Agarwal, Advocate with Tarun Agarwal, Advocate

For Respondent(s): Shoeb Hasan Khan, Advocate with Rohit Sharma, Advocate

Op EdsOP. ED.

Introduction

Mankind and environment are interlinked and dependent to each other. The environment degradation has affected the current human generation radically and has posed the threat of the future generation as well. The worldwide situation of the health and expenses on health indicates the need of the legislative measure to save the environment in order to prevent most of the health issues. The current national level laws for sustainable development have jurisdiction of the limited territorial area and international law is required to protect the planet as a whole. The law should criminalise the damage to the environment and also promote its sustainable use. The sustainable use of environment is one thing and restoration of it in the same state is another. The need of hour is to make such developments that help to escalate the economy along with environment stability. The consideration of ecocide as an international crime is the single most powerful measure due to enlarged loss of biodiversity around the world and lack of reversing technique to compensate the system failure which helps to emphasise that the security of our planet must be guaranteed on an international scale.

Need of considering ecocide as international crime

The world leaders at UN Conference on Sustainable Development held in Stockholm in June 2022, to stress upon the binding principles and rules for consideration of ecocide as crime at ICC[1].

The first international conference on environment issues named UN Stockholm Conference held in 1972 for tackling the concerns regarding environmental degradation issues[2]. International organisations are weighing in with expert publications such as the International Energy Agency’s “Net Zero by 2050”[3] Report serving as a reminder that the clock is ticking towards the targets set by the Paris Agreement and the IPCC’s “Special Report on Global Warming of 1.5°C”[4].

It was first used in 1970, when Professor Arthur W. Galston coined the term[5] to describe the effects of the use of Agent Orange by the US in Vietnam. Galston proposed an international agreement to ban ecocide at the time. It was subsequently considered for inclusion as an additional crime in early drafts of what became the Rome Statute of the International Criminal Court (ICC), alongside the international crimes prosecuted at the Nuremburg trials (war crimes, genocide, crimes against humanity), but was ultimately excluded.

The population size of mammals, birds, fish, amphibians and reptiles have dropped by 68% on an average globally, and as much as 94% for Latin America as per the recent Report of Living Planet by WWF[6].

Similarly, the latest State of the World’s Plant and Fungi Report[7] led by the Royal Botanic Gardens, Kew, shows that 39% of the all plants and species– about 140,000 – face extinction[8] in the coming decades, with the degradation of natural resources and ecosystems the primary cause. As recently shown by the first UN Environment Programme synthesis report[9] and the first joint IPCC/IPBES Report[10], biodiversity loss and the climate emergency pose severe threats to humanity. Unlawful environment damage caused by international companies in low income, biodiverse countries further risks accentuating systematic injustice and global inequalities. Protecting nature is necessary to address biodiversity loss and the climate crisis simultaneously[11].

Analysis of the definitions and the proposed draft

The idea is not new, being first mooted by late Swedish Prime Minister Olof Palme. He had tried to push the ecocide idea at the 1972 environmental conference in Stockholm.[12]

Prof. Philippe Sands of the University College London, also a Queen’s Counsel was quoted by The Daily as saying:

“The four other crimes all focus exclusively on the well being of human beings. This one of course does that but it introduces a new non-anthropocentric approach, namely, putting the environment at the heart of international law, and so that is original and innovative. For me the single most important thing about this initiative is that it’s part of that broader process of changing public consciousness, recognising that we are in a relationship with our environment, we are dependent for our well-being on the well-being of the environment and that we have to use various instruments, political, diplomatic but also legal to achieve the protection of the environment.”[13]

In 2010, lawyer and environmental campaigner Polly Higgins lobbied the UN to create an international crime of ecocide. Although the UN rejected her argument, in 2016 the ICC said it would assess instances of environmental destruction as “crimes against humanity”.[14]

Corporate and State responsibility is also excluded under the Rome Statute. Meaning, corporations and States that cause water and air pollution or participate in illegal deforestation and cause oil spills during peacetime cannot be prosecuted for their environmental damage. Clearly, ICC crimes do not place any legal restrictions on harms that occur during times of peace.

The ICCs Rome Statute further defines crimes against humanity as “acts committed as part of a widespread systematic attack directed against any civilian population”. For many, the definition is too narrow to include ecocide as triable by the ICC.

Recently on 22-6-2021 a group of lawyers defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts”.[15]

  1. … “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
  2. “severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;
  3. “widespread” means damage which extends beyond a limited geographic area, crosses State boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;
  4. “long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
  5. “environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.[16]

The definition provides two thresholds, first being the severe and either widespread or long term and secondly, the act is unlawful or wanton. Further, the commission of an offence will not arise merely from the pollution or damage to the environment. But from either the wilful omission of the safety protocols or having knowledge of the damage that will be caused.

Further, the mens rea definition given under Article 30 of the Rome Statute was considered too narrow to cover the severe and widespread or long-term damage to the environment[17].

The aim of the draft is to make the rising environment related issues punishable in order to prevent its further damage. Also the environment protection is directly linked to the protection of mankind and the planet in general.

National and international stance on environment protection

Various national and international case laws highlight that the need is to consider environment preservation and economic development hand in hand. The right to safe, clean and healthy environment has been included under the fundamental right of right to life which shows that the importance of environment and life are equally important.

In May 2021, the ruling of a court in the Netherlands ordered Royal Dutch Shell to cut its emissions by 45 per cent by 2030. In the same week, the Federal Court in Australia ruled that the Minister for the Environment owes a duty of care to safeguard Australian children from the impacts of climate change. Courts around the world are also increasingly hearing air pollution cases, pressuring governments to comply with legal limits.

One of the reasons for this is citizens increasingly becoming aware of and exercising their human rights to a clean environment. Judges are also more aware of the critical role they play in climate and environmental adjudication, with increased capacities in this space.

State of T.N. v. Hind Stone[18]

  1. Rivers, forests, minerals and such other resources constitute a nation’s natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation.[19]

T.N. GodavarmanThirumulpad v. Union of India[20]

  1. … As was observed by this Court in M.C. Mehta v. Kamal Nath[21] our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

 Jitendra Singh v. Ministry of Environment[22]

  1. … Water bodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.

Aim behind introduction of ecocide

 The aim of the draft[23] is to include ecocide as crime along with already existing four specific types of criminal acts:  genocide, war crimes, crimes against humanity and crimes of aggression.

The environment will surely have the catastrophic consequences due the emission of greenhouse gases and the destruction of ecosystems at current rates on the planet and the environment as the conclusion drawn by the scientific evidences.

“Thus with political, diplomatic and economic initiatives, international law has a role to play in transforming our relationship with the natural world, shifting that relationship from one of harm to one of harmony.”

Currently, crimes that harm the environment are only internationally criminal during times of armed conflict. Article 35(3) of Additional Protocol I[24] maintains that “destruction of the natural environment may not be used as a weapon”. To include the intentional crimes which affect and damage the environment adversely are also required to be included.[25]

Advantages

 The inclusion of ecocide as fifth international crime holds great significance as it carries along with it various related advantages. Firstly, environment will gain its lost importance which has been sidelined by the greedy human kind which is exploiting it continuously to explore more and more economic advantages. Secondly, member countries may get inspired and bring change in their national criminal laws which will boost the strictness of the crime and protection of the environment. Thirdly, it will help the environment law crimes that fall outside national laws and cannot be included in already existing four international law crimes.[26]

Conclusion

 The need of the present technically developed society which is continuously craving for economic benefits is to make environment degradation a crime and doer a criminal. The continuing exploitation of the environment has to be stopped otherwise end of the planet is near as daily news reports states the fires in big forests, melting of glacier, Covid-19 as some reports state it as a bio weapon. Thus, the proposal and the draft is required to be accepted by the international authorities and every country should try to be its signatory.


* 4th year student, National Law University of Study and Research in Law, Ranchi.

[1]Ministry of Environment Affairs, “Stockholm+50”, (The Government Offices of Sweden, 2022), available at<https://www.government.se/government-policy/stockholm50/>, visited on 30-6-2021.

[2] United Nations, United Nations  Conference  on the  Human Environment,  5-16  June , 1972,  Stockholm,  Environment  and Sustainable Development, available at<https://www.un.org/en/conferences/environment/stockholm197>, visited on 30-6-2021.

[3]IEA (2021), Net Zero by 2050, Paris, available at<https://www.iea.org/reports/net-zero-by-2050>, visited on 30-6-2021.

[4] The Intergovernmental Panel on Climate Change (IPCC), Special Report on Global Warming of 1.5°C, <https://www.ipcc.ch/sr15/>, visited on 30-6-2021.

[5]Ecocide Law, History, available at<https://ecocidelaw.com/history/>, visited on 30-6-2021.

[6]The Royal Botanic Gardens, Kew,State of the World’s Plants and Fungi,(2020) <https://www.kew.org/science/state-of-the-worlds-plants-and-fungi>,visited on 30-6-2021.

[7]The Royal Botanic Gardens, Kew, State of the World’s Plants and Fungi, (2020) https://www.kew.org/science/state-of-the-worlds-plants-and-fungi, visited on 30-6-2021.

[8]Eimear Nic Lughadha, et al., Extinction Risk and Threats to Plants and Fungi, 29-9-2020, available at <https://doi.org/10.1002/ppp3.10146>, visited on 30-6-2021.

[9] United Nations Environment Programme, Making Peace with Nature, Report, 18-2-2021, available at <https://www.unep.org/resources/making-peace-nature>,visited on 30-6-2021.

[10]IPBES, Launch of IPBES-IPCC Co-Sponsored Workshop Report on Biodiversity and Climate Change, 10-6-2021, available at<https://www.ipbes.net/events/launch-ipbes-ipcc-co-sponsored-workshop-report-biodiversity-and-climate-change>,  visited on 30-6-2021.

[11]Alexandre Antonelli and Pella Thiel, Ecocide Must be Listed alongside Genocide as an International Crime, <https://www.theguardian.com/environment/commentisfree/2021/jun/22/ecocide-must-be-listed-alongside-genocide-as-an-international-aoe>, visited on 30-6-2021.

[12]A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>, visited on 30-6-2021.

[13]Sujit  Bhar, A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>,visited on 30-6-2021.

[14]John Vidal and Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases, The Guardian, 15-9-2016, available at<https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases>, visited on 30-6-2021.

[15]Siddique, Haroon,  Legal Experts Worldwide Draw up “Historic” Definition of Ecocide,  The Guardian, 22-6-2016, available at <https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 30-6-2021.

[16]Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and Core Text, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 30-6-2021.

[17] Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and CoreText, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 30-6-2021.

[18] State of T.N. v. Hind Stone, (1981) 2 SCC 205, 212.

[19](1981) 2 SCC 205, 212.

[20](2002) 10 SCC 606, 638.

[21](1997) 1 SCC 388.

[22]2019 SCC OnLine SC  1510. 

[23]Haroon Siddique,  Legal Experts Worldwide Draw up “Historic” Definition of ecocide, The Guardian, 22-6-2021, available at<https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 30-6-2021.

[24]International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12-8-1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8-6-1977, available at

<https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=0DF4B935977689E8C12563CD0051DAE4>,visited on 30-6-2021.

[25]Racheal Tillman, Coalition of Lawyers Push for “Ecocide” to be an International Crime, Spectrum News 1, 24-6-2021,  available at<https://spectrumlocalnews.com/nys/central-ny/news/2021/06/24/ecocide-international-criminal-court-proposal-lawyer>,visited on 30-6-2021.

[26]Mélissa Godin, Lawyers are Working to Put “Ecocide” on Par with War Crimes. Could an International Law Hold Major Polluters to Account? 19-2-2021, available at<https://time.com/5940759/ecocide-law-environment-destruction-icc/>,visited on30-6-2021.

Case BriefsForeign Courts

Supreme Court of Pakistan: The Division Bench of Manzoor Ahmad Malik and Syed Mansoor Ali Shah, JJ., heard petition which arose from the Notification dated 08-03-2018 (“Notification”) issued by the Industries, Commerce and Investment Department, Government of the Punjab (“Government”), under sections 3 and 11 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963 (“Ordinance”), introducing amendments in Notification dated 17-09-2002 to the effect that establishment of new cement plants, and enlargement and expansion of existing cement plants shall not be allowed in the “Negative Area” falling within the Districts Chakwal and Khushab.

Petitioner, owner of cement manufacturing plant in Kahoon Valley felt wronged by the Notification due to reasons stated below:

  • the Provincial Government and its line Department lacked jurisdiction to issue the Notification and only Local Government under the Punjab Local Government Act, 2013 (“Act”) could exercise jurisdiction over matters relating to zoning and classification of land, land use, environment control, water sources and ecological balances;
  • the respondents without a detailed scientific study about underground water levels acted with undue haste in issuing the Notification;
  • the petitioner was not given the opportunity of hearing under section 3 of the Ordinance read with Articles 4, 9, 10A, 18 and 25 of the Constitution of the Islamic Republic of Pakistan (“Constitution”);
  • the petitioner’s right to freedom of trade, business and profession under Article 18 of the Constitution was infringed; and
  • the actions of the respondents unreasonably discriminated between the petitioner and other cement manufacturers similarly placed on the basis of materials and information that could not be termed as reasonable or intelligible differentia thereby violating Article 25 of the Constitution.

The Court first took up the question of whether the Provincial Government can declare an area to be a “Negative Area” under the Ordinance. The Court observed that zoning of areas into positive and negative is not absolute. The ban under the

Notification is not etched in stone but may be lifted if the Government is of the view that the valley, in this specific case, stands recharged with water and nature has become resilient to allow sustainable development. The Court held that zoning of areas for the purposes of the Ordinance is not absolute but is subject to change provided such change is necessitated by new circumstances. Hence, the prohibition under the Notification not to establish or enlarge an industrial undertaking in a negative area is not absolute.

The Court was of the view that insofar as the objection of the petitioner that the mandate of zoning of land belongs to the local government was concerned, suffice it to say that the matter involved a trans-district issue which could be dealt with by the Provincial Government exercising the authority conferred by the Ordinance.

Regarding the claim of the petitioner relating to infringement of Article 18 of the Constitution, the Court was of the view that the rights granted under Article 18 of the Constitution were “subject to such qualifications” that have been “prescribed by law”. The Ordinance forbids the setting up of any industrial undertaking except by the prior written permission of the Government. Placing an embargo on establishment and expansion of cement plants in the Negative Area to provide for organized and planned growth of industries in the Province in line with the objectives of the Ordinance does not offend Article 18 of the Constitution.

Next major question was whether the Notification was issued in public interest in line with the objectives of the Ordinance or not.

In 2016, the Secretary, Mines and Minerals Department had informed the Provincial Government that existing cement plants in the Salt Range were causing ecological harm to the area. In this backdrop, the Government decided to inquire into the matter and solicit expert advice. The Consultants found that groundwater table had gone down at an average of 64 feet at various locations, shallow wells (open/dug wells) had been found dried up and, therefore, further installation of new cement plants/expansion of existing cement plants could cause further depletion of groundwater resulting in greater problems for the local people and especially for agriculture. They were of the view that four valleys i.e. Kahoon, Vinhaar, Pail and Padhrar having important scenic and touristic value needed to be protected. The Government concluded that permitting the establishment of new and expansion of existing cement plants would be prejudicial to public interest.

Counsel for the petitioner, had argued that that the petitioner company proposes to expand the existing cement plant by installing a new “zero water” technology cement plant. However, Court found that there was no evidence brought on the record to establish the claim that the new cement plant technology is ‘zero-water’ or even the fact that the petitioner was currently manufacturing cement without any use of water. The Court also noticed that building ponds and storage tanks (a water management project) required an Initial Environmental Examination (IEE)/Environment Impact Assessment (EIA), which does not appear to have been done, casting doubts on legal sustainability of these ponds and storage tanks in the Negative Area. The Court stressed enough on the fact that enlargement of an existing cement plant in a negative area attracts the well established principle of international environmental law called the Precautionary Principle, reflected in Principle 10 of the Rio Declaration, 1992. The principle provides; “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

Man and his environment each need to compromise for the better of both and this peaceful co-existence requires that the law treats environmental objects as holders of legal rights.

The Court further discussed importance of Water and Climate justice in context with the fragility of the Negative Area. Only by devising and implementing appropriate adaptation measures will it be possible to ensure water, food and energy security for the country. The goal of the Policy is to ensure that climate change is mainstreamed in the economically and socially vulnerable sectors of the economy and to steer Pakistan towards climate resilient development. The Notification, in the current facts of the case, is a climate resilient measure and in step with the National Climate Change Policy and the Constitution.

This Court and the Courts around the globe have a role to play in reducing the effects of climate change for our generation and for the generations to come. Through our pen and jurisprudential fiat, we need to decolonize our future generations from the wrath of climate change, by upholding climate justice at all times.

The Court finally dismissed the petition and rejected all the contentions given by the petitioner holding that Notification dated 08-03-2018 was in accordance with the provisions of the Ordinance and negative area can be planned and designed banning industrial activity within its bounds. The Petitioner company was not allowed to enlarge or enhance the capacity of its existing cement plant till such time that the Negative Area subsisted.[D. G. Khan Cement Company Ltd. v. Government of Punjab, C.P.1290-L/2019, announced on 15-04-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For the petitioner(s): Mr Salman Aslam Butt, ASC.

For the respondent(s): Ms Aliya Ejaz, Asstt. A.G.

Dr. Khurram Shahzad, D.G. EPA.

  1. Nawaz Manik, Director Law, EPA.
  2. Younas Zahid, Dy. Director.

Fawad Ali, Dy. Director, EPA (Chakwal).

Kashid Sajjan, Asstt. Legal, EPA.

Rizwan Saqib Bajwa, Manager GTS.

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of S. A. Bobde, CJ., A.S. Bopanna and V. Ramasubramanian, JJ., addressed the instant PIL addressing the issue of protection of two species of birds namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction. The Bench remarked,

“…keeping in view, the sustainable development concept and on striking a balance the protection of the rare species of birds is essential to be made, the effort being to save every bird while at the same time allowing transmission of power in an appropriate manner.”

Earlier the application in I.A. No.85618 of 2020 was filed seeking interim directions to direct the State of Rajasthan and State of Gujarat to ensure predator proof fencing, controlled grazing in the enclosure development and to direct the said respondents not to permit installation of overhead power lines and also not permit further construction of windmills and installation of solar infrastructure in priority and potential habitat as identified by the Wildlife Institute of India.

The petitioners being environmentalists, were seeking to protect the rare birds which are dwindling in number. It was contended that GIB is one of the heaviest flying birds in the world, about a meter in height and wing span of around seven feet. It had disappeared from 90 per cent of habitat except parts of Rajasthan and Gujarat. The existence of overhead power lines was stated to have become a hazard due to which the said species of birds on collision are getting killed.

It had been submitted by the state that the underground highvoltage line is not technically feasible due to several factors such as (i) high cost (ii) high downtime to repair any failed cable (iii) non­availability of cables at 765 Kv level and (iv) increase in the number of joints with length of run.

The Wildlife Institute of India (WII) in its Report “Power Line Mitigation, 2018” had stated that every year 1 lakh birds die due to collision with power lines. The Report concluded that unless power line mortality is mitigated urgently, extinction of GIBs is certain. The study estimated 3 bird mortalities/km/month for low ­tension lines, 6 bird mortalities/km/month for high ­tension lines, and about 1 lakh birds/per year within a 4200 sq.km area in/around Desert National Park, Rajasthan. In terms of GIB, 6 mortalities had been recorded in Thar during 2017­-2020, all due to high­tension transmission lines – some of them connected to wind turbine. Ministry of Power, Union of India, in its affidavit had admitted that,

“The Great Indian Bustard lacks frontal vision. Due to this, they cannot detect powerlines ahead of them, from far. As they are heavy birds, they are unable to manoeuvre across power lines within close distances. Thus, they are vulnerable to collision with power lines. In case of low voltage lines, electrocution is often the cause of death due to smaller phase to phase separation distance. High voltage lines do not cause death due to electrocution but cause death due to collision.”

In T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277, it had been observed that,

“Environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric…ecocentrism is nature­centred where humans are part of nature and non­humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non­humans independently of human interest. Ecocentrism is therefore life­centred, nature­centred where nature includes both humans and non­humans.”

On the respondents’ contention regarding lack of funds, the Bench observed that there was Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 which provides for financial sharing between Centre and State. Further, there are schemes that provide for 100% central assistance in respect of GIB. Citing the decision of M.C Mehta v. Kamal Nath,(1997) 1 SCC 388, the Bench opined, the State as well as the Central Government have a duty to preserve the endangered species. Pursuant to which following directions were pronounced:

Directions

  1. The government shall take steps forthwith to install divertors pending consideration of the conversion of the overhead cables as exist on today in the priority and potential GIB area into underground powerlines.
  2. In all such cases where it is found feasible to convert the overhead cables
    into underground powerlines the same shall be undertaken and completed within a period of one year and till such time the divertors shall be hung from the existing
  3. Irrespective of the cost factor the priority shall be to save the near extinct
  4. One of the options that could be explored, is to invite the attention of each electricity utility engaged in the generation of power, to Section 135 of the Companies Act, 2013, which imposes corporate social responsibility upon companies having a specified net worth or turnover or net profit.
  5. Under Compensatory Afforestation Fund Act, 2016 (CAF, 2016), substantial funds are available with the National and State Authorities. The State of Rajasthan has already set up a Compensatory Afforestation Fund Management and Planning Authority. Rule 5(2)(i) of these Rules permit the use of the State Fund for the improvement of wildlife habitat. (According to the petitioner a sum of Rs.47,436 crores, out of a
    total of Rs.54,685 crores CAMPA Fund have been transferred by the Union Environment Ministry to the States for afforestation projects.)
  6. For conservation of the habitat to secure the safety of the eggs laid by the birds, the area earmarked shall be fenced and protected from invasion by predators so that the eggs laid in these areas are protected. The power supply line regarding which underground passage is to be made should also avoid these areas.
  7. Since the laying of highvoltage underground power line would require expertise to assess the feasibility of the same. For the purpose of assessing the feasibility the Bench constituted a committee consisting of Dr. Rahul Rawat (Scientist), Dr. Sutirtha Dutta (Scientist) and Dr. Devesh Gadhavi, Deputy Director (The Corbett Foundation).
  8. The above committee was granted liberty to obtain technical reports if need be, from experts in the field of electricity and the respondents were directed to refer the matter to the committee with all the relevant material and particulars if there is any issue relating to feasibility.

[M.K. Ranjitsinh v. Union of India, 2021 SCC OnLine SC 326, decided on 19-04-2021]


Kamini Sharma, Editorial Assistant has put this report together

Appearance before the Court by:

For the Petitioner: Sr. Adv. Shyam Divan

For the Respondents: ASG Aishwarya Bhati and Sr. Adv. Manish Singhvi

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Coram of Justice Adarsh Kumar Goel, Chairperson and Justice Sudhir Agarwal, Justice Brijesh Sethi, Judicial Members and Dr Nagin Nanda, Expert Member, addressed an application with regard to illegal mechanical sand mining.

Question for consideration

Remedial action against illegal mechanical sand mining on the river bed of River Yamuna and construction of a temporary bridge with hume pipes at Shamli, Uttar Pradesh.

Earlier, Tribunal in light of the Joint Committee’s report had considered the above-stated issue and had directed remedial action against which the entity carrying on mining approached the Supreme Court by way of appeal. Though Supreme Court had dismissed the said appeal.

Vide an Order dated 28-11-2019, Tribunal noted the remedial action taken by way of levy of compensation and revocation of Environmental Clearance was inadequate.

Vide an Order dated 29-10-2020, compensation for damage to the environment had to be in the light of the cost of restoration with deterrent element and having regard to the financial capacity of the violator. This aspect does not seem to have been considered.

Further, the Bench stated that State PCB and District Magistrate may take further appropriate action. Compensation was recovered for only 48 days, though illegal mining was found for about 5 years, as per the report.

Tribunal noted the legal position with regard to the payment of compensation on polluter pays principle. Compensation is equal to loss caused or suffered.

In Supreme Court’s decision of M.C. Mehta v. Union of India, (1987) 1 SCC 395 it was laid down that the person undertaking hazardous activity was liable for damage caused irrespective of negligence. Compensation has to have relation with the financial worth of the violator so as to be a deterrent.

With regard to compensation for illegal mining, Tribunal dealt with the matter in a recent order dated 26-02-2021 in NGT Bar Association v. Virender Singh (State of Gujarat), OA No. 360 of 2015.

Moving forward, Bench in view of the facts and circumstances of the case expressed that the issue of compensation may be revisited by the joint committee of State PCB and District Magistrate.

Application was disposed of in view of the above-stated reasons. [Sandeep Kharb v. Ministry of Environment, Forest and Climate Change; 2021 SCC OnLine NGT 137, decided on 07-04-2021]


Advocates before the Court:

Applicant: Mr. Pradeep Dahiya, Advocate for Applicant

Respondent(s): Mr. Amit Tiwari, Advocate for State of UP

Mr. Pradeep Misra, Advocate for UPPCB

Mr. Sanjeev Ralli, Senior Advocate with Mr. Saurabh Rajpal, Advocate. For M/s M.M Traders

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Coram of Justice Adarsh Kumar Goel (Chairperson) and Justice Sudhir Agarwal, Justice Brijesh Sethi (Judicial Members) and Dr Nagin Nanda (Expert Member), addressed a matter wherein it was alleged that a forest guard was mowed down by mining mafia in Sariska Tiger Reserve.

Proceedings based on News Report in Times of India

The inception of the present proceedings was based on a media report i.e. a news item published in the Times of India on 27-07-2020 under the heading “Forest guard mowed down by ‘mining mafia’ in Sariska”.

Forest home guard was mowed down by a tractor belonging to the suspected mining mafia inside Sariska Tiger Reserve after he attempted to stop them. The guard was rushed to a hospital where he succumbed to injuries.

Further, it was stated that the tractor was seized but the accused was yet to be arrested. It was also added that this was not the first incident, in the past villagers have attacked forest officials.

Due to the menace of frequent attacks in Sariska, unarmed forest guards often struggle to protect the area.

Matter considered in the past

When the matter was considered on 10-08-2020, it was observed that there was failure of oversight regulatory mechanism in enforcing provision of the Wildlife (Protection) Act, 1972 and Sustainable Sand Mining Guidelines, 2020.

In view of the above, a committee was constituted to take further remedial action and to file a report specifically mentioning estimate of illegal mining, number of mines sanctioned in the area and regulatory mechanism to check the illegal mining in the eco-sensitive area.

Analysis & Decision

Tribunal noted that in view of the Supreme Court decision in T.N Godavarman v. UOI, WP No. 2020 of 1995, tribunal by it’s order dated 20-12-2018 in Nityendra Manav v. UOI, had prohibited mining within 10 km of Sariska Tiger Reserve and quashed the Environmental Clearance in question against which appeal was filed before the Tribunal.

Coram in view of the above stated that it is necessary for the authorities to take further remedial measures to enforce the law of land.

Polluter Pays Principle

Further, it was directed that State PCB and District Magistrate, Alwar may take steps to stop operation of mining leases, operating illegally, without requisite consents and also to examine whether the leases for which consents are given are permissible. Tribunal added to its direction to State PCB that it may also recover compensation for damage to the environment by illegal mining activities, following due process on ‘Polluter Pays’ principle.

To study the carrying capacity of the area to sustain the mining activities on ‘Sustainable Development’ principle, the constitution of a joint committee comprising MoEF&CC, CPCB, State PCB, Chief Wildlife Warden, SEIAA, Rajasthan and District Magistrate, Alwar has been directed.

CPCB and State PCB will be the nodal agency for compliance and coordination. and joint Committee may give its report within three months.

Matter to be listed for further consideration on 11-08-2021. [News item published on 27-07-2020 in the local daily named “Times of India” titled “Forest guard mowed down by ‘mining mafia’ in Sariska”,  2021 SCC OnLine NGT 79, decided on 6-04-2021]


Advocates before the tribunal:

Respondent: Ms. Punam Singh, Mr. Kumar Rajesh Singh, Advocates for MoEF & CC

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT), Principal Bench, New Delhi: The Bench of Justice Adarsh Kumar Goel (Chairperson) and Justice Sheo Kumar Singh (Judicial Member) and Dr Nagin Nanda (Expert Member)declined any relief to the applicant seeking an injunction against the demolition of Dhobi Ghat.

The instant application sought an injunction against the demolition of Dhobi Ghat, Okhla Delhi.

Applicant on an earlier occasion had approached the Delhi High Court by way of WP (C) 8963 of 2020, Muslim Kassar Vikas Sangthan (Reg.) v. Delhi Development Authority, the said petition was disposed of on 12-11-2020, wherein the Court had asked the petitioners to approach the NGT. 

Tribunal found the grievance to be out of the ambit of Sections 14 and 15 of the National Green Tribunal Act, 2010.

Bench added that jurisdiction of NGT under Sections 14 and 15 can be invoked by a victim of pollution for the restoration of environment or for compensation to the victim, and the said issue is not shown in the instant matter.

Hence, in view of the above application was disposed of. [Muslim Kassar Vikas Sangthan (Regd.) v. Delhi Development Authority, 2020 SCC OnLine NGT 867, decided on 11-12-2020]


Also Read:

Section 14 of the NGT Act:

Tribunal to settle disputes.—(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.

(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.

(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

Section 15 of the NGT Act:

Reliefcompensation and restitution.—(1) The Tribunal may, by an order, provide,—

(arelief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);

(b) for restitution of property damaged;

(c) for restitution of the environment for such area or areas,

as the Tribunal may think fit.

(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (band (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).

(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.

(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority.

NGT
Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Coram of Justice Adarsh Kumar Goel (Chairperson) and Sheo Kumar Singh (Judicial Member), Dr Satyawan Singh Garbyal and Dr Nagin Nanda (Expert Members), while addressing the issue and considering the ban on the use of firecrackers observed that:

Celebration by crackers is for happiness. It is not to celebrate deaths and diseases. Happiness of few at the cost of life of others is not the value in Indian society which stands for happiness and well-being of all.

Issue

Remedial Action against pollution by use of firecrackers aggravating the menace of COVID-19 pandemic, posing a higher danger to the lives and health of the vulnerable groups.

Current Restrictions of Firecrackers

Bench noted that considering the potentially harmful consequences of burning crackers amidst COVID-19 pandemic situation and approaching winter, the State of Odisha, Rajasthan, Sikkim, NCT of Delhi (DPCC) and UT Chandigarh prohibited sale and use of firecrackers to protect the vulnerable groups like elderly, children, persons with co-morbidities and others.

Tribunal also placed reliance on the Technical Expert Committee that prohibition on firecrackers is a necessity to avoid the harmful health impact on account of the bursting of crackers, aggravating COVID during increased pollution.

Calcutta High Court’s decision in Anasua Bhattacharya v. State of W.B., WPA No. 1984 of 2020, was also noted wherein the Court has banned firecrackers.

State of Tamil Nadu

State of Tamil Nadu submitted that banning of crackers will affect the livelihood of the manufacturers and workers and the same was justified.

State of Punjab

Punjab claimed that air quality in its non-attainment cities was satisfactory and moderate during certain months.

Assam Pollution Control Board also stood by the stand of State of Punjab.

Amicus

Amicus, Raj Panjwani submitted that air pollution increases the risk of mortality from COVID-19.

He referred to various articles and further added that Lung injuries, including the life-threatening acute respiratory distress syndrome and respiratory failure, as well as an acute coronary syndrome, arrhythmia, myocarditis, and heart failure, were shown to be clinically dominant, leading to critical complications of COVID-19.

Recent studies in China, the USA, as well as Europe, indicate that patients with cardiovascular risk factors or established cardiovascular disease and other comorbid conditions are predisposed to myocardial injury during the course of COVID-19. From the available information, it thus follows that air pollution-induced inflammation leads to greater vulnerability and less resiliency, and the pre-conditions increase the host vulnerability.

Nexus between Pollution and COVID-19

Amicus added that with Covid-19, even reduced pollution becomes hazardous. What may be permitted in normal time can also not be permitted during Covid-19. That is the reason for the ban by the States which was never considered without Covid. The States have gone by expert advice in doing so. There is enough material indicting nexus between the pollution and the Covid and that the increased pollution will increase Covid impact.

Tribunal: Decision and Analysis

Bench stated that the Supreme Court’s decision in regard to ‘Firecrackers’ does not involve the impact of COVID-19, due to which it makes necessary for the tribunal to proceed further.

Financial loss or loss of employment cannot be a consideration not to remedy the situation affecting lives and health of the citizens by pollution, aggravated by Covid.

Further, the bench emphasised that

“while it is true that any restriction on the sale and use of crackers may affect the business and employment, at the same time if the use of crakers results in pollution and affects life and health of the citizens and the environment, such use may have to be restricted/prohibited to effectuate ‘Sustainable Development’ principle of which ‘Precautionary’ principle is a part, as per the mandate of Section 20 read with Section 15 of the National Green Tribunal Act, 2010.”

In view of the above stated, Tribunal stated that if authorities do no exercise its jurisdiction, the Tribunal has to exercise its jurisdiction.

Right of trade is not absolute and is to be subject to the ‘Sustainable Development’ principle, which is part of Right to life.

Relevant SC directions and Observations

In Arjun Gopal v. Union of India(2017) 1 SCC 412it was noted that air quality standards in Delhi are from ‘poor’ to ‘severe’ during winter resulting in the potential of diseases. Directions that were issued in the said decision were:

  1. Suspend all such licenses as permit sale of fireworks, wholesale and retail, within the territory of NCR.
  2. The suspension shall remain in force till further orders of this Court.
  3. No such licenses shall be granted or renewed till further orders.

The above directions were modified in the following Orders:

Arjun Gopal v. Union of India(2017) 16 SCC 280, It was noted that, the health of the people has to take precedence over any commercial or other interests, graded regulation of firecrackers was necessary which would eventually result in prohibition. Accordingly, directions were issued to restrict the temporary licenses to 50%, pending further consideration.

Supreme Court in Arjun Gopal v. Union of India, (2019) 13 SCC 523, while banning certain categories of firecrackers and directing regulation of the remaining, directed that on Diwali days or other festivals, firecrackers will be used strictly between 8 p.m to 10 pm only with different timings for some other festivals.

In the Supreme Court’s decision, the scope of the precautionary principle, even in absence of scientific certainty, was considered, apart from the contention of economic considerations, as a bar to remedy pollution.

In view of the data of CPCB, Tribunal stated that it is not possible to accept that in the State of Punjab ar quality is satisfactory or moderate everywhere in November. Bench stated that it needs a uniform yardstick needs to be applied based on objective criteria of air quality in the context of COVID-19 pandemic and associated adverse health impacts.

Green Firecrackers

While bursting of green firecrackers for the duration of two hours on festival days may be allowed in areas with moderate and below air quality, where not otherwise prohibited by authorities/Courts, there has to be total ban where air quality is poor and above.

With regard to the submission of States to not impose the ban of firecrackers or green crackers on festival days for 2 hours is justified where air quality is moderate and below but not where air quality is poor and above which may result in deaths and diseases.

Bench stated that to States/UTs falling in NCR and where 122 non-attainment cities are located, tribunal proposes to issue directions in rem applicable to all States/UTs.

Since air pollution aggravates COVID-19, not only crackers are to be banned/restricted depending upon air quality, all States/UTs, PCBs/PCCs must take special initiative to contain air pollution by regulating all other sources to pollution, particularly during COVID-19.

Conclusion & Directions

Tribunal in view of the above discussion held that a case is made out for issuing directions for banning the sale and use of firecrackers during November 9 to 30 in areas where air quality is ‘poor’, ‘very poor’ and ‘severe’.

Following are directions:

  • Total Ban against sale or use of all kinds of firecrackers in the NCR from midnight of November 9-10, 2020 to the midnight of November 30-December 1, 2020, to be reviewed thereafter.
  • Direction (i) will also apply to all cities/towns in the country where the average of ambient air quality during November (as per available data of last year) fall under ‘poor’ and above category.
  • Cities/Towns where air quality is ‘moderate’ or below, only green crackers be sold and the timings for use and bursting of crackers be restricted to two hours during festivals, like Diwali, Chatt, New Year/Christmas, etc. as may be specified by the State concerned. If nothing is specified by the State, timing will be 8 to 10 pm on Diwali and Gurupurb, 6 am to 8 am on Chatt and 11.55 pm to 12.30 am during Christmas and New year eve (which have yet to come and do not fall in November but if the ban continues) and not otherwise.
  • At other places, ban/restrictions are optional for the authorities but if there are more stringent measures under orders of the authorities, the same will prevail.
  • All States/UTs/PCBs/PCCs may initiate special drives to contain air pollution from all sources in view of the potential of aggravation of Covid-19.
  • States/UTs Chief Secretaries and DGPs may issue and circulate an appropriate order in above terms with appropriate enforcement guidelines to all the District Magistrates and Superintendents of police, PCBs/PCCs.
  • CPCB and the State PCBs/PCCs may regularly monitor the air quality during this period which may be uploaded on their respective websites.

Matter to be listed on 1-12-2020.[Tribunal on its own Motion v. Ministry of Environment, Forest & Climate Change; 2020 SCC OnLine NGT 860; decided on 09-11-2020]


Also Read:

NGT | Whether use of firecrackers be banned in Delhi-NCR from 7th November to 30th November, 2020 in public interest? Tribunal to decide

Cal HC | No sale or purchase of firecrackers in any form: State to ensure that there is no use of firecrackers during Diwali celebrations & Kali Puja

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Coram of Justice Adarsh Kumar Goel (Chairperson) and Justice S.P. Wangdi (Judicial Member) and Dr Nagin Nanda (Expert Member), while addressing a matter reiterated that,

There is no absolute right to extract groundwater for commercial purposes. If anyone is found extracting groundwater, it is per se a criminal offence under the Environment (Protection) Act, 1986.

Illegal Extraction of Groundwater

Tribunal sought a report from the State Pollution Control Board with regard to the allegation of illegal extraction of groundwater and discharge of polluted water with dyes and chemicals into the drain by the National Wollen and finishers.

State PCB filed a report wherein it was noted that Regional Director, CGWB, Chandigarh was directed to take action and levy environmental compensation on National Wollen and Finishers for extracting underground water without CGWA permission, as per the report of CPCB in-house Committee on Methodology of assessing Environmental Compensation and Action Plan for its utilization of Fund Assessed.

Further, the report also stated that the consent to establish under the Water Act and Air Act was granted on 03-09-2012.

In the Tribunal’s decision of Shailesh Singh v. Hotel Holiday Regency, OA No. 176 of 2015, it was held that,

“…groundwater extraction has to be regulated having regard to the safety of level of groundwater so that water bodies and e-flow of rivers is not affected.”

There is no absolute right to extract ground water for commercial purpose. If anyone is found extracting ground water, it is per se a criminal offence under the Environment (Protection) Act, 1986.

Hence, the tribunal held that National Wollen and Finishers has been found to be extracting groundwater, therefore, State PCB must stop such extraction by coercive means and recover compensation for such illegal drawal for the period for which such drawal took place up to five years from the date of filing of the application before this Tribunal.

Adding to its decision, the tribunal also stated that, there is also a violation of Consent terms under the Water and Air Acts which can certainly be enforced by the PCB, in view of the failure of CGWB to take action.

In view of the above, the application was disposed of. [Raj Kumar Singal v. State of Haryana, 2020 SCC OnLine NGT 220, decided on 05-08-2020]

Hot Off The PressNews

India marks the beginning of super year of Biodiversity with the hosting of the 13th Conference of Parties (COP) of the Convention on the Conservation of Migratory Species of Wild Animals (CMS), an environmental treaty under the aegis of United Nations Environment Programme, from 17th to 22nd February 2020 at Gandhinagar in Gujarat.

India – Norway Joint Statement on Climate and Environment

  1. Meeting at the beginning of the ‘2020 Super Year’ for the environment, the Ministers stressed that they will do their share to ensure that the 2020s will be a decade of rapid action on climate and environment.
  2. The two sides expressed interest to continue and strengthen the mutually beneficial cooperation on environment and climate between the two countries, including on ocean affairs.
  3. Actions that target climate change and air pollution at the same time pose a win-win situation. The two sides recognized that such actions should be stepped up, and agreed to work together to raise this agenda.
  4. The Ministers recognized that the Kigali Amendment to the Montreal Protocol for phasing down use of Hydrofluorocarbons (HFCs) could prevent up to 0.40C of warming by end of the century, Further, noting that universal ratification of Kigali Amendment to the Montreal Protocol shall allow realization of its full potential.
  5. The Ministers noted the results of the projects supported by Norway on issues/aspects related to phase-down of HFCs. It was agreed to continue such projects for facilitating a smooth transition towards energy-efficient solutions and technologies while phasing down HFCs.
  6. If managed properly, the ocean holds the key to meeting many of the Sustainable Development Goals. Integrated ocean management is central to achieving a sustainable blue economy. In 2019 Prime Minister Modi and Prime Minister Solberg welcomed the signing of the MoU on India-Norway Ocean Dialogue and the establishment of the Joint Task Force on Blue Economy for Sustainable Development. The two Ministers were pleased with the progress that has been made under this MoU, including the establishment of the Marine Pollution Initiative. They were particularly satisfied that Norway and India will sign a Letter of Intent on integrated ocean management including sustainable Blue Economy initiatives.
  7. The Ministers also noted the importance of delivering concrete, scalable solutions for ocean health and wealth at the UN Ocean Conference in Lisbon on June 2020.
  8. The Ministers further noted the importance of sustainable management of chemicals and waste and welcomed the cooperation between India and Norway on the implementation of the Stockholm Convention on Persistent Organic Pollutants and on the minimisation of discharge of marine litter.
  9. The Ministers emphasized a shared understanding of the global and urgent nature of marine plastic litter and microplastics and underlined that this issue cannot be solved by any one country alone. They are committed to supporting global action to address plastic pollution and exploring the feasibility of establishing a new global agreement on plastic pollution.
  10. The Ministers agreed to support and work together with other political leaders to prompt a global and effective response to curb the direct and indirect drivers of biodiversity loss. They agreed to work together to deliver an ambitious, strong, practical and effective global biodiversity framework at COP15 of CBD to be held in Kunming, China, in 2020.
  11. The Ministers further discussed the conservation of migratory species of wild animals. The Ministers recognized the importance of integrating ecological connectivity into the post-2020 global biodiversity framework.
  12. The Ministers stressed that international supply chains and finance must de-invest from deforestation and destruction of nature and invest in companies and projects that improve smallholder livelihoods while promoting sustainable production and consumption. They agreed to continue the discussion on forests and deforestation free supply chains.
  13. The Ministers stressed that the fifth United Nations Environment Assembly of the United Nations Environment Programme offers a good opportunity to call for greater international action on several environmental issues, in particular strengthening action for nature to achieve the Sustainable Development Goals.
  14. Minister Rotevatn thanked Minister Javadekar for the great hospitality extended to him and his delegation during the visit. He invited Minister Javadekar to visit Norway and the Arctic, to further strengthen the collaboration between India and Norway on climate and environment.
  15. Norway and India will explore areas of cooperation in forestry and linking the same with climate change.

Ministry of Environment, Forest and Climate Change

[Source: PIB]

[Press Release dt. 16-02-2020]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J. contemplated a writ petition where the residents of village Danpur in Rudrapur moved a petition before the National Green Tribunal and informed that the rice mills which were operated in the said village were polluting the environment. The petitioner was the Mill owner who had now filed the instant petition against the order for imposition of penalty.

NGT passed an order, thereby directing the State Pollution Control Board to inspect and file its report. Subsequently, the State Pollution Control Board inspected the rice mills and found certain anomalies in the rice mill since the air filters were not working in the rice mill and the petitioner was asked to rectify his air pollution control system and the report was subsequently submitted to the NGT. In reply to which NGT asked the Board as to why a penalty was not imposed on the Mill for the pollution already caused. Hence, a penalty of Rs 3,37,500 was imposed on the abovementioned Mill.

Counsel for the petitioner, Subhash Upadhayaya argued that penalty was purely in an arbitrary manner. There had been no inspection of the rice mill after 08-05-2019 and even earlier to that, and permission had already been given to the rice mill of the petitioner for 90 days.

On the contrary counsel for the State, Aditya Pratap Singh had apprised that the fixation of the penalty/compensation was not done arbitrarily, but it was based on the guidelines issued by the Central Pollution Control Board.

The Court observed that though the matter was pending before NGT related to the quantum of the penalty the petition had no merits. It further noted that the respondent had also admitted that the compensation/penalty was not justified and the same will be refunded to the petitioner.[Bansal Industries v. Uttarakhand Environment Protection and Pollution Control Board, 2019 SCC OnLine Utt 627, decided on 18-07-2019]

NGT
Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): A Coram of Justice Adarsh Kumar Goel (Chairperson) and S.P. Wangdi (Judicial Member), K. Ramakrishnan (Judicial Member), JJ., and Dr Nagin Nanda (Expert Member), directed that a sum of Rs 17.31 crores assessed by the Committee comprising Central Pollution Control Board (CPCB), Haryana State Pollution Control Board (HSPCB) and Deputy Commissioner, Panipat, be deposited by Indian Oil Corporation Ltd. (IOCL) Panipat Refinery within one month with the CPCB by way of interim compensation for restoration of the environment subject to further orders. Further action may be taken by the HSPCB in accordance with the law.

In the present case, a complaint was filed stating that air and water pollution caused by Panipat Refinery was causing large scale diseases affecting the inhabitants of the area. A joint team consisting of CPCB, HSPCB and deputy commissioner, Panipat was formed to assess the pollution caused. The report acknowledged enormous pollution. The samples from the Effluent Treatment Plant (ETP) were found to be non-compliant. Ambient air quality was exceeding the norms. Untreated effluent was found to be discharged in the green belt areas. Unit was not complying with the conditions of recycling and reusing treated water. ETP was not being operated efficiently and was not adequate. Untreated effluents were being stored in open storage lagoon without VOC recovery system.

Mr Aman Lekhi, learned Additional Solicitor General appearing for the IOCL responded to the report by the committee through a note which stated that the permission to discharge into Thirana drain was granted by the department of irrigation, Haryana Government. The respondent could not be made responsible for ambient air quality as the report by the joint committee itself was unable to attribute the same to IOCL and only said that the unit might be contributing to increase in values.

The Tribunal noted that IOCL could not justify the discharge of polluting effluents. Permission by the Pollution Control Board could be only to discharge effluents as per laid down norms. No dilution was available in the drain and norms were being violated. There was adequate material to hold that there is a violation of environmental norms.

The Tribunal disregarded the submission that no compensation may be required to be paid as the pollution was also contributed by others. The respondents could not avoid responsibility for the same. It was directed that a sum of Rs 17.31 crores assessed by the Committee may be deposited by the unit with the CPCB by way of interim compensation for restoration of the environment subject to further orders.[Satpal Singh v. Indian Oil Corporation Ltd. Panipat Refinery, 2019 SCC OnLine NGT 63, decided on 10-05-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Rajiv Sharma, ACJ. and Lok Pal Singh, J., gave directions to the State Government against the encroachment upon the Alpine meadows in the State.

The petition was sought to conserve and preserve Bugyal (Alpine meadows) situated below the area of Roopkund in District Chamoli. Referred to as the ‘Nature’s own gardens’, the area was primarily meant for grazing the sheep and goats and comprises of life-saving medicinal plants. It had been prayed to direct the forest department to make a Policy for the protection of Aali-Bedini-Bagzi Bugyals, consequently restricting grazing of sheep and goats to local shepherds hence making it non- commercialized. The petition also directed to remove permanent fibre huts constructed by the Forest department made of concrete base thereby restricting the overnight stay of the tourists in the local surroundings plus put an end to the gathering of ‘Keera Jari’ (Yarsagambu, a medicinal plant) as the area suffered from soil erosion, pollution and poaching of animals.

The Court concluded that it was the duty of the State to protect and improve the environment, forests and wildlife of the country as per Article 48A of the Constitution of India following which it also underlined the fundamental duty towards the environment of each individual under Article 58A(g).                                                                                                                                                                                                                                                                                                                                        Accordingly, the bench disposed of the PIL with following directions:

  1. To remove all the permanent structures from Bugyals.
  2. To constitute the Eco-Development Committees.
  3. To restrict the number of tourists to 200 visiting the alpine meadows.
  4. To ban overnight stay in the Alpine.
  5. The commercial grazing of cattle was banned and only the local shepherds alone would be permitted to graze their cattle on the Bugyals by restricting the number of cattle.
  6. To conduct systematic survey of its flora.
  7. Every forest division should have a herbarium of important medicinal, rare, threatened and botanically interesting plants for reference and done only through government/public sector, as recommended by the experts.

[Aali-Bedini-Bagzi Bugyal Sanrakshan Samiti v. State of Uttarakhand, 2018 SCC OnLine Utt 760, order dated 21-08-2018]

Conference/Seminars/LecturesLaw School News

Society for the Advancement of Animal and Environmental Welfare, Friends Beyond Species (National Law University Odisha, Cuttack) will be hosting the first of its kind conference in collaboration with Humane Society International India on Animal and Environmental Welfare with specific emphasis on Wildlife Conservation and Emerging Trends on 25th – 26th September, 2018.

As a pioneering venture the Journal for Animal and Environmental Welfare (JAELW) will also be launched at the aforementioned event publishing the shortlisted research papers. In pursuance of this the Society for the Advancement of Animal and Environmental Welfare (NLUO) hereby invites your valued contributions for the 1st Issue of the mentioned journal in the form of research papers.

Theme: Wildlife Conservation and Sustainability

Sub-themes

  1. Human-wildlife interactions: Does conservation lead to conflict?
  2. Community Conservation: A critical tool for wildlife protection
  3. Environmental Entrepreneurship as a tool for livelihood of local communities and conservation
  4. Illegal Wildlife Trade: Technology enables policing and traceability
  5. Role of citizen science in wildlife management
  6. Institutional governance and legal requirements for co-existence
  7. Live elephant trade in India: Legal and Illegal
  8. Use of social science in wildlife conservation
  9. Zoo: Wildlife Conservation or Violation of Animal Rights
  10. Wildlife Crimes and Law: International Accords and Treaties
  11. National Policy and Legal Framework to curb wildlife trade
  12. Tourism Industry, Environment and Wildlife – Impact and Legal Challenges

Important Dates

  • Last date for Abstract submission: 20th August, 2018
  • Intimation to authors (short listing of abstracts): 23rd August, 2018
  • Last date for payment of registration fee: 1st September, 2018
  • Last date for final paper submission: 16 September, 2018; 23:59 hours

Submission Guidelines: Submissions may be in the form of Articles (3,500-6,000 words).

The word count is exclusive of footnotes. The body of the manuscript should be in Times New Roman, size 12 with 1.5 spacing.

The footnotes should be in Times New Roman, size 10 with single spacing. Submissions must conform to the OSCOLA format of citation and include a 250 word abstract that briefly summarises the paper.

The last date for submission of abstract is 20th August, 2018

The last date for submission of complete paper is 15th September, 2018.

Submissions are to be e-mailed tocaew@nluo.ac.in with the subject heading ‘Volume I – JAELW Submission’.

The e-mail should indicate which sub-theme the paper is intended for. Further, it should also contain the name of the author, qualifications, title of the manuscript and contact information.

Please note that no information that could identify the author should be included in the manuscript. Co-authorship is allowed.

Registration fee and details

For Students (Single Author) – Rs 700; Co-authorship – Rs 1200

For Academicians/Professionals (Single Author) – Rs 1000; Co-authorship – Rs 1500

Candidates who only want to attend the conference, can get themselves registered by sending a mail at caew@nluo.ac.in along with some essential details (Name, University’s Name, Contact details) latest by 23 August 2018 (23:59 hours) Registration Fee (for candidates who only want to attend the conference)- Rs 400

Accommodation: Rs 500 per day/per head

Mode of Payment will be conveyed to the participants after the shortlisting of abstracts is done.

Contact: For submissions and/or queries, write to us at: caew@nluo.ac.in.

  • Meghna Lal (Convener): 9406955452
  • Ayushi Hatwal (Co-convener): 8763276308
Click HERE for Information Brochure.

Foreign LegislationLegislation Updates

Underlining the effort to protect the environment and human health from infectious bio-medical waste, the Bio-Medical Waste Management Rules, 2016 Rules have been amended to improve compliance and strengthen the implementation of environmentally sound management of biomedical waste in India.

These amendments have been made vide Notification G.S.R. 234(E) dated 16-03-2018. The amendment was undertaken after consulting Ministry of Health and Family Welfare, Central Pollution Control Board, State Pollution Control Boards, and Health Care Facilities.

The salient features of the Bio-Medical Waste Management (Amendment) Rules, 2018 are

  • Bio-medical waste generators including hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories, blood banks, health care facilities, and clinical establishments will have to phase out chlorinated plastic bags (excluding blood bags) and gloves by 27-03-2019.
  • All healthcare facilities shall make available the annual report on its website within a period of 2 years from date of publication of the Bio-Medical Waste Management (Amendment) Rules, 2018.
  • Operators of common bio-medical waste treatment and disposal facilities shall establish bar coding and global positioning system for handling of bio-medical waste in accordance with guidelines issued by the Central Pollution Control Board by 27-03-2019.
  • The State Pollution Control Boards/Pollution Control Committees have to compile, review and analyze the information received and send its information to the Central Pollution Control Board in a new Form (Form IV A), which seeks detailed information regarding district-wise bio-medical waste generation, information on Health Care Facilities having captive treatment facilities, information on common bio-medical waste treatment and disposal facilities.
  • Every occupier, i.e. a person having administrative control over the institution and the premises generating biomedical waste shall pre-treat the laboratory waste, microbiological waste, blood samples, and blood bags through disinfection or sterilization on-site in the manner as prescribed by the World Health Organization (WHO) or guidelines on safe management of wastes from health care activities and WHO Blue Book 2014 and then sent to the Common bio-medical waste treatment facility for final disposal.

[Press Release no. 1526326, dt. 24-03-2018]

Ministry of Environment, Forest and Climate Change

NewsTreaties/Conventions/International Agreements

The Union Cabinet has approved the signing of a ‘Memorandum of Cooperation’ between India and France in the field of environment. The Memorandum of Cooperation will enable establishment and promotion of closer and long-term cooperation between the countries in the field of environment protection and management of natural resources on the basis of equity, reciprocity and mutual benefits, taking into account the applicable laws and legal provisions in each country. The Memorandum is expected to bring in the latest technologies and best practices suited to bringing about better environment protection, better conservation, better management of climate change and wildlife protection/conservation.

[Press Release no. 1523089]

Ministry of Environment, Forest and Climate Change