Case BriefsTribunals/Commissions/Regulatory Bodies


National Green Tribunal, New Delhi (NGT): The Bench of Adarsh Kumar Goel, J(Chairperson) and Sudhir Agarwal, J (Judicial Member) and Prof. A. Senthil Vel (Expert Member) took suo moto cognizance based on media report titled “Times's running out; Is India ready to handle 34,000 tonnes of Solar Waste by 2030?” highlighting the need for formulation of a sound solar waste management policy in India.

Upcoming Catastrophe

In the climate summit at Glasgow (COP26), Prime Minister, Narendra Modi announced that India would generate 40% of its installed energy capacity from non-fossil sources (solar, wind, hydro, biomass and nuclear) by 2030. The Government, thereafter, set an ambitious target installing renewable energy capacity of about 450 GW (Gigawatts) by 2030 in which its solar target is 280 GW (over 60%).

But as it is rightly said “with great power comes great responsibility”, with an ambitious target comes responsibility of tackling with solar waste, i.e. the electronic waste generated by discarded solar panels, which is going to increase by at least 4-5 fold by the next decade.

Therefore, it is high time that India should formulate a sound solar waste management policy as it has none.

NGT's Take

Noting the serious problem which India will face in future, NGT vide order dated 14.02.2022, directed the constitution of Joint Committee comprising of Secretary, Ministry of Environment, Forest & Climate Change (MoEF & CC), and Secretary, Ministry of New & Renewable Energy (MNRE). Further, the MoEF & CC will be the Nodal agency for coordination and compliance.

Accordingly, a report dated 17.05.2022 was filed by MoEF&CC suggesting an action plan with phase wise steps to enable environmentally sound management of solar panel waste, after it was directed to prepare an Action Plan with regards to environmentally sound management of solar panel waste in accordance with the laid down norms.

Disposing the application, the Tribunal suggested that MoEF&CC may finalise further action in the matter, preferably within two months.

[In re: Article Published in the magazine i.e Down to earth dated 13 January 2022 Under the Title Time’s running out : Is India ready to handle 34,600 tonnes of Solar waste by 2030, Original Application No.112/2022, order dated 19.07.2022]

Case BriefsSupreme Court

Supreme Court: In a PIL raising concerns for the protection of two rare species of birds, namely the Great Indian Bustard (‘GIB’) and the Lesser Florican, which is on the verge of extinction, the 3-Judge Bench comprising of D.Y. Chandrachud, A.S. Bopanna and V. Ramasubramanian, JJ., directed installation of bird divertors in the priority areas before 20-07-2022.

The petitioners were environmentalists who had approached the Court to seek directions for protecting the rare birds which are dwindling in number; particularly direction to prohibit use of overhead power lines which have become a hazard as the said species of birds are getting killed on collision with the power lines.

Considering that the laying of highvoltage underground power line would require expertise to assess the feasibility of the same, the Court had constituted a three member committee by its order dated 19-04-2021. The status report submitted by the said Committee revealed that the Committee received eight applications for exemption from the requirement of setting up underground transmission lines out of which two applications were approved on the receipt of Central Electricity Authority’s (CEA) technical report permitting laying of overhead transmission lines subject to the installation of bird diverters. The remaining six applications are at various stages of scrutiny.

Noticeably, the Committee had obtained a technical report from the Central Electricity Authority (CEA) on the feasibility of undergrounding 400 kV and 765 kV transmission lines and had further sought a technical report from CEA on undergrounding 66 kV and 220 kV transmission lines to which a reply is awaited. Therefore, considering the fact that none of the parties or the intervenors had any objection to the installation of bird divertors, the Bench issued following directions:

  1. Installation of bird divertors at least in the priority areas of the States of Gujarat and Rajasthan must be taken up with the utmost expedition.
  2. Installation of bird divertors in the priority areas to be completed before 20-07-2022. The Bench clarified that the direction will apply on all State owned as well as private power producers.
  3. The States of Rajasthan and Gujarat as well as all power producers in the private domain are to ensure that within the priority areas, a comprehensive exercise is completed within a period of three weeks to assess (i) the total length of transmission lines; and (ii) the estimated number of bird divertors required for the purpose.
  4. The Committee was directed to formulate the standards of quality required for the bird divertors within a month in consultation with the CEA so that uniformity can be maintained in the standards to be observed.
  5. Necessary steps to be taken immediately thereafter for ensuring that the time schedule of completing the installation of bird divertors in the priority areas associated with the Great Indian Bustard and Lesser Florican is observed by all power producers in Gujarat and Rajasthan.
  6. That any company which seeks an exemption from the direction to install underground transmission lines shall be at liberty to move the Committee which has been constituted by the Court.
  7. Since the feasibility of and need for installation of fresh overhead transmission lines is being examined by the Committee on a case to case basis and hence, the applicants were asked to approach to approach the Committee at first, and thereafter move the Court, if there be any subsisting grievance.

On the complaints received by the Committee regarding ongoing installation of power lines despite the directions of the Court, the Bench emphasized that the injunction imposed by the Court from the installation of fresh overhead transmission lines by its earlier order, save with the approval of the Committee should be scrupulously enforced. The States of Gujarat and Rajasthan as well as private power producers were directed to ensure that there is no breach of the directions.

The matter is listed on 20-07-2022 for further hearing.

[M.K. Ranjitsingh v. Union of India, W.P. (C) No. 838 of 2019, order dated 21-04-2022]

Appearance by:

For Union of India: K K Venugopal, Attorney General

For the Petitioners: Shyam Divan and Prashanto Chandra Sen, Senior Advocates

For Respondents: Rakesh Dwivedi, K V Viswanathan and Dr Manish Singhvi, Senior Advocates

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Jharkhand High Court: Rajesh Shankar J. refused to interfere with the detailed NGT order only for the purpose of providing a shortcut method of dealing with the violation of cases of the members of the petitioner.

The facts of the case are such that Respondent 1 vide notification dated 14.09.2006 formulated the Environment Impact Assessment Notification, 2006 (i.e. EIA Notification, 2006) which mandates for obtaining prior Environmental Clearance i.e. EC from the concerned regulatory authority to initiate construction activities for the projects falling under the Schedule of EIA Notification, 2006.  On 14.03.2017, respondent 1 issued notification to deal with the cases of alleged violation of the environmental laws and thus a process was established to deter violation of provisions of EIA Notification, 2006 and be compensated by restoring the ante-original state.

A Public Interest Litigation (PIL) challenging the validity of the said notification 2017 was filed before the High Court of Madras which was stayed, later vacated and upheld.  The notification was later amended and the power for appraisal of category ‘B’ proposals which are under violation of EIA Notification, 2006 were delegated to the States.  The respondent 1 issued another notification dated 15.03.2018 for implementation of the notification which was assailed before NGT for non-implementation. The Tribunal issued several directions to the State to forthwith stop all the ongoing construction activities undertaken without obtaining prior EC. Aggrieved by this, the petitioner is a member of the Confederation of Real Estate Developers’ Association of India (CREDAI) which is the apex body of private real estate developers comprising of the real estate developers of the State of Jharkhand filed the instant petition.

Counsel for the petitioner Abhishek Manu Singhvi submitted that the action of the respondent 3 in directing the members of the petitioner to stop construction activities without any opportunity of hearing is in violation of the principles of natural justice. It was also submitted that the members of the petitioner have all requisite documents for grant of EC, however the same was not granted due to non-existence of SEIAA in the State of Jharkhand.

Mr. Singhvi also submitted that that the impugned orders prohibiting construction activities without obtaining prior EC has brought the entire real estate sector to a grinding halt which was just getting back to normalcy post first wave of Covid-19 pandemic and as a result of stoppage of construction activities, the livelihood of around 3 lakhs construction workers and over 15 lakhs dependent members are at stake and over 200 industries in the MSME Sector have been severely affected. It was also submitted that that the members of the petitioner are ready and willing to get their projects assessed by the respondent-SEIAA, Jharkhand for any mitigating condition including payment of compensation that may be assessed in true letter and spirit while processing and granting EC for their projects.

Counsel for the respondents submitted that as per EIA Notification, 2006, in the absence of SEIAA/SEAC in the State/UTs, the proposal was to be appraised by the EAC at central level. Therefore, the plea of the petitioner that the SEIAA, Jharkhand was non-functional from 09.11.2019 to 03.11.2020 due to which many project proponents could not obtain prior EC is baseless and not tenable in the eye of law.  It was further submitted that the members of the petitioner started construction work without obtaining mandatory EC required under EIA Notification, 2006 which comes under violation category and presently there is no mechanism to deal with such violation cases. It was also pointed out before the Court that if the petitioners were aggrieved by the NGT order, the same should have been challenged before Supreme Court.

It is observed that respondent 2, in exercise of the power conferred by section 3(2)(v)(1) of the Environment (Protection) Act, 1986, r/w Rule 5 (3) (d) of the Environment (Protection) Rules, 1986, issued notification imposing certain restrictions and prohibitions on new projects or expansion or modernization of existing projects or activities based on their potential environmental impacts unless prior environmental clearance has been accorded in accordance with the objectives of National Environment Policy.

The Court observed that that the petitioner cannot claim the benefit of the fact that the SEIAA, Jharkhand was not functioning for certain period, since its members could have applied before the EAC at Central level for grant of EC in view of clause-4 of the EIA Notification, 2006.

The Court further observed that there were various notices mentioning that if the noticees have not obtained environmental clearance, they must stop the construction activities immediately and submit the environmental clearance, failing which action will be initiated under the provisions of the Jharkhand Municipal Act, 2011. It was also observed that if the petitioner or any of its members found itself aggrieved by the order of the NGT, it could have filed appeal against the said order for getting appropriate relief; however it did not choose to challenge the same. As such, challenge to the impugned notices on the ground of violation of the principles of natural justice, is not sustainable.

It is a trite law that a writ cannot be issued on the ground of violation of principles of natural justice if only one conclusion is possible in a given situation. Every violation of a facet of natural justice may not lead to a conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of “prejudice”.

The National Green Tribunal Act, 2010 (in short “the Act, 2010”) has been enacted for the establishment of National Green Tribunal for effective and expeditious disposal of cases relating to environmental protection and conservation of forest and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

The Court held that “since the NGT is a specialized body to look into the environmental affairs which has passed the order to deal with the present issue applying the principle of sustainable development and the precautionary principle having been empowered in view of Section 22 of the Act, 2010, the Government of Jharkhand must ensure that EIA is undertaken, management plan is prepared for the projects which were started in violation of EIA Notification, 2006, compensation is duly assessed and recovery of the same is made from the defaulter as well as in the meantime the ongoing construction must be stopped.”

In view of the above, writ petition was dismissed.

[Confederation of Real Estate Developers Association of India v. UOI, 2021 SCC OnLine Jhar 370, decided on 13-05-2021]

Arunima Bose, Editorial Assistant has put this report together 

Counsel For the Petitioner: Mr. Abhishek Manu Singhavi, Mr. Keshav Mohan and Mr. N.K. Pasari

Counsel For the Respondent 1: Mr. Rajiv Sinha

Counsel For the Respondent 2 and 3: Mrs. Surabhi

Counsel For the Respondent 4: Mr. Bhanu Kumar