Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and MR Shah*, JJ has held that Magistrate can in exercise of powers under Section 156(3) of the Criminal Procedure Code order/direct the concerned Incharge/SHO of the police station to lodge/register crime case/FIR even for the offences under the the Mines & Minerals (Development & Regulation) Act, 1957 (MMDR Act) and the Rules framed thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted.

The Court was hearing a case relating to offences under Sections 379 and 414 IPC, Sections 4/21 of the MMDR Act and Rule 18 of the M.P. Minerals (Prevention of illegal Mining, Transportation and Storage) Rules, 2006 where the Magistrate in exercise of powers conferred under Section 156(3), Cr.P.C. suo motu directed to register criminal case under Section 156(3) Cr.P.C. for initiation of investigation and for submitting of report after due investigation is conducted. The concerned In-charge/SHOs of the concerned police stations was also directed to register the first information report and a copy of the first information report be sent to the learned Magistrate as per the provisions of Section 157, Cr.P.C. The Madhya Pradesh High Court had refused to quash the criminal proceedings.

It hence, concluded

i) that the Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned Incharge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted;

ii) the bar under Section 22 of the MMDR Act shall be attracted only when the Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder;

iii) for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and

iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In-charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.

v) in a case where the violator is permitted to compound the offences on payment of penalty as per sub-section 1 of Section 23A, considering sub-section 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under sub-section 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further.

Considering the need for stringent provisions which may have deterrent effect so that the violators may think twice before causing damage to the earth and the nature, the Supreme Court said

“It might be true that by permitting the violators to compound the offences under the MMDR Act or the rules made thereunder, the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage to the environment. However, in view of the large scale damages being caused to the nature, the policy and object of MMDR Act and Rules are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature.”

In the present case, on a surprise inspection, the respective Mining Inspectors checked the tractor/trolleys of the private appellants along with the minor mineral (sand/storage/yellow soil etc.) loaded in them.

[Jayant v. State of Madhya Pradesh, 2020 SCC OnLine SC 989, decided on 03.12.2020]


*Justice MR Shah has penned this judgment 

Case BriefsSupreme Court

Supreme Court:  The 3-judge bench of SA Bobde, CJ and A.S. Bopanna and V. Ramasubramanian*, JJ has reiterated that the Courts should not thwart any investigation unless no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

Referring to the decision in State of Haryana v. Bhajan Lal, (1992) Supp. (1) SCC 335, the Court said,

“(…) the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint.”

In S.M. Datta v. State of Gujarat, (2001) 7 SCC 659 the Court cautioned that criminal proceedings ought not to be scuttled at the initial stage.

“Quashing of a complaint should rather be an exception and a rarity than an ordinary rule.  (…) if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.”


FIR against Skoda Auto Volkswagen over alleged use of cheat devices


Skoda Auto Volkswagen India Private Limited is engaged in the business of manufacture, import and sale of passenger vehicles in India. The 3rd Respondent in the case lodged an FIR, alleging that he had bought 7 Audi Brand cars from the authorised dealers of the manufacturing Companies and knowing fully well that their vehicles have been installed with cheat devices, the manufacturer had prepared wrong records and documents.

The Petitioner moved Allahabad High Court seeking quashing of the FIR alleging that the FIR is based entirely upon the order of the NGT, which is the subject matter of two civil appeals before the Supreme Court.

Allahabad High Court rejected the prayer for quashing of the FIR. However, the High Court protected the officers of the petitioner against arrest till the submission of the Report under Section 173(2) Cr.P.C. subject however to the condition that they shall cooperate in the investigation.

Not satisfied with a mere protection against arrest and the refusal of the Allahabad High Court to quash the FIR, the petitioner argued before the Supreme Court:

  1. That the Police cannot investigate an issue, the substratum of which is sub judice before this Court in the civil appeals arising out of the order of the NGT; and
  2. That the High Court failed to take note of the long delay on the part of the 3rd Respondent in lodging the complaint and
  3. That the VAHAN Portal of the Government shows the purchase of only 3 vehicles as against the claim of the 3rd Respondent to have purchased 7 vehicles.

Why the Supreme Court refused to quash FIR


On Issue 1

Should pendency of the Civil Appeals and the interim order passed by Supreme Court be taken as a deterrent for anyone else to lodge a police complaint and seek an investigation?

Two original applications came to be filed before the NGT in the year 2015, alleging that the manufacturers of the vehicles in question were employing deceit devices. This coincided with the issue of notice by the Automotive Research Association of India to the manufacturers. The   applicants before the NGT did not seek any relief for themselves, as purchasers of vehicles. The reliefs sought by the applicants before the NGT were broad and general. Hence,

“ (…) the order of the NGT, passed on the applications filed by certain individuals not claiming as purchasers of vehicles, cannot   be   taken   as   an   impediment   for   an   individual   who purchased cars from the manufacturers, to lodge a complaint, if he has actually suffered on account of any representation made by the manufacturers.”

Further, the interim order passed by the Supreme Court not to take any coercive steps has to be understood only in the context of the aforesaid directions of the NGT which became the subject matter of the Civil Appeals.

Can police investigate into the same set of allegations which form the subject matter of proceedings pending adjudication before Supreme Court?

The question whether such devices are installed in the cars purchased by the 3rd respondent herein and the question whether there was any representation in this regard to the petitioner, are all questions of fact, peculiar and particular to the 3rd respondent herein. NGT had no occasion to examine the cars purchased by the 3rd respondent herein.

The Court said,

“At this stage no one can presume whether the defence of the manufacturer to the police complaint will be purely on a question of fact or purely on a question of law or on mixed questions of fact and law.”

  • If the petitioner takes a defence that no such devices were installed in the cars purchased by the 3rd respondent or that there was no (mis)representation in this regard, it will be a pure question of fact, which cannot be gone into in a quash petition.
  • If the petitioner takes a defence that the installation of such devices, though true, does not violate any law, then it will be a pure question of law.

The Court said that the action initiated by the Automotive Research Association of India in November 2015 and the proceedings that went on before the National Green Tribunal from the year 2015 to the year 2019, have to be seen in the light of the Dieselgate Scandal[1]. All of them were part of the global outrage that actually concerned the damage caused to the environment by the emissions from the cars allegedly fitted with manipulative devices.

The proceedings before the NGT were not intended to address issues relating to individuals, such as

(i) whether any emissions manipulation software, called in common parlance as ‘defeat devices’ were installed in the vehicles purchased by certain individuals; and

(ii) whether any representation was made to the purchasers of the cars in which such devices had been installed, about the emission efficiency level of the cars

Hence, the Court rejected the contention that the substratum of the police complaint is something that is already the subject matter of adjudication before this Court in the appeals arising out of the order of the NGT. It held that the High Court has been fair to the petitioner, by granting protection against arrest till the filing of the report under section 173(2) of the Code.

On Issue 2

Mere delay in lodging the complaint, cannot by itself be a ground to quash the FIR. The law is too well settled on this aspect to warrant any reference to precedents.

On Issue 3

The Court did not go into the third issue as it is a question of fact which has to be established only in the course of investigation/trial.

[Skoda Auto Volkswagen India Private Limited v. State of Uttar Pradesh, 2020 SCC OnLine SC 958, decided on 26.11.2020]


*Justice V. Ramasubramanian has penned this judgment 

For Petitioner: Senior Advocate Dr. Abhishek Manu Singhvi

For 3rd Respondent: Senior Advocate Maninder Singh

[1] In September-2015, allegations of installation of manipulation devices by car manufacturers emerged from the US Environmental Protection Agency triggering investigations in several European Union States. After claims were lodged and legal action initiated, the German Federal Motor Transport Authority appears to have given permission in June-2016 for the recall of about 2 million vehicles across Europe. In the light of these developments, one of the manufacturers entered into an agreement with the US Environmental Protection Agency in December-2016 giving certain options to the customers. These and the subsequent developments, which attained notoriety as the diesel-gate 18 scandal, led to the German Federal Court of Justice (Bundesgerichtshof-BGH) giving a ruling on May 25, 2020 in favour of the car owners for damages.
Case BriefsSupreme Court

Supreme Court: In the case where the National Green Tribunal directed the State of Madhya Pradesh to ensure that no dealer and/or outlet and/or petrol pump should supply fuel to vehicles without Pollution Under Control (PUC) Certificate, the bench of Arun Mishra and Indira Banerjee, JJ has held that NGT had no power to pass such direction as the stoppage of supply of fuel to vehicles not complying with the requirement to have and/or display a valid PUC Certificate is not contemplated either in the Central Motor Vehicles Rules, 1989 or in the National Green Tribunal Act, 2010.

“Motor Vehicles not complying with the requirement of possessing and/or displaying a valid PUC Certificate cannot be debarred from being supplied fuel.”

The Court said that when a Statute or a Statutory Rules prescribed a penalty for any act or omission, no other penalty not contemplated in the Statute or a Statutory Rules can be imposed. When a Statute requires a thing to be done in a particular manner, it is to be done only in that manner.

After going through the relevant provisions, the Court summarized that driving a vehicle without a pollution PUC certificate entails:

  • suspension of registration certificate;
  • imprisonment which may extend to three months;
  • fine which may extend to Rs.10,000/- or both
  • disqualification for holding licence for a period of three months
  • imprisonment for a term which may extend to six months or with fine which may extend to Rs.10,000/- or with fine.

It further noticed that as per Rule 116(8) and (9), the suspension of the certificate of registration is temporary. The suspension is until such time as a certificate is produced before the Registering Authority certifying that the vehicle complies with sub Rules (2) and (7) of the Rule 115 of the Central rules. A Certificate of Registration is also to be deemed to have been suspended, until a fresh Pollution Under Control certificate is obtained.

“There can be no doubt that strong measures must be taken to protect the environment and improve the air quality whenever there is contravention of statutory rules causing environmental pollution. Stringent action has to be taken, but in accordance with law.”

The Court, hence, noticed that in passing blanket direction, directing the appellant State Government to ensure that no dealer and/or outlet and/or petrol pump should supply fuel to vehicles without PUC Certificate, de hors the Central Motor Vehicles Rules, NGT overlooked the fact that no vehicle can either be repaired to comply with pollution norms, nor tested for compliance with the political norms upon repair, without fuel.

Hence, the NGT had no power and/or authority and/or jurisdiction to pass orders directing the Appellant State Government to issue orders, instructions or directions on dealers, outlets and petrol pumps not to supply fuel to vehicles without PUC Certificate.

The Court, however, directed that the State shall strictly implement compliance of Rules 115 and 116 and penalize all those who contravene the said Rules in accordance with the provisions of the 1989 Rules.

“The Registration Certificate of vehicles which do not possess a valid PUC Certificate shall be forthwith suspended and/or cancelled, and penal measures initiated against the owner and/or the person(s) in possession and/or control of the offending vehicle, in accordance with law.”

[State of Madhya Pradesh v. Centre for Environment Protection Research and Development, 2020 SCC OnLine SC 687, decided on 28.08.2020]

Case BriefsSupreme Court

Supreme Court: Taking note of the “appalling situation” concerning National Green Tribunal where, as of today, there are about 14 vacancies (seven judicial members and seven technical members), the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ has directed Centre to notify, within 10 days, all the existing vacancies at one go, including the anticipated vacancies likely to take place in the next six months.

The Court noticed that the Tribunal is presently functioning with the strength of only seven judges i.e. one chairman, three judicial members and three technical members, despite the mandate to ensure that the minimum number of members shall not be less than 10. It said,

“This is an appalling situation concerning the premier institution such as National Green Tribunal, which is required to deal with environmental issues. That cannot be countenanced.”

Centre had, in it’s response, given assurance that notification for filling up nine vacancies is being issued by the end of July, 2020. But the Court said that it was not enough and that a notification for ALL vacancies was needed to be issued.

The Court, further, directed that until the proposed selection process culminates with appointment order(s) of the concerned candidates against the existing vacancies, the members presently in office as on this date but are likely to retire shortly, shall continue to hold office in terms of this order and discharge their functions accordingly.

The Court has asked the Centre to file a compliance report by the next date of hearing i.e. 13.08.2020.

[NGT Bar Association (Western Zone) v. Union of India, 2020 SCC OnLine SC 591 , order dated 23.07.2020]


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Hot Off The PressNews

Supreme Court: The bench Arun Mishra and Deepak Gupta, JJ has allowed construction activity in the Delhi-NCR region between 6 am and 6 pm, partially lifting its complete ban on it.  The said order of the Court came after Additional Solicitor General A N S Nadkarni informed it that the Centre has constituted a high-level committee following the apex court’s direction to examine the feasibility of using technology like smog towers to combat air pollution.

The bench also directed the governments of Uttar Pradesh, Punjab and Haryana to furnish before it the updated report on stubble burning up to December 11.

The court had on November 25 directed the Centre to constitute a high-level committee within three days to consider and work out modalities regarding other technologies to help combat pollution, and said that a report be filed before it within three weeks on this issue. The various direction that the Court had earlier issued are as follows:

  • It had asked the Delhi government to apprise it of the steps taken with regard to anti-smog gun which sprays atomized water 50 metres in the air to bring down pollutants and had said CPCB should be associated on the issue of anti-smog guns.
  • The court had asked all the states to explain within six weeks as to why they should not be made liable to pay compensation to persons affected by bad air quality saying it is their bounden duty to provide basic civic amenities, clean air and drinking water to citizens.
  • The court had asked the Centre and the Delhi government to sit together and take decision within 10 days with regard to installation of smog towers in Delhi-National Capital Region (NCR) which would help in combating air pollution.

The Court had said that “the right to life of human is being endangered” by the bad air quality and water pollution and the states have to deal with the situation as “life span is being shortened”. The Court also took exception that states and Centre were indulging in “blame game” over crucial issue of air and water pollution and asked them to work in tandem for welfare of the people. It said despite various orders being passed by the top court from time to time in the pollution matter, the situation has worsened over the years and authorities have to be blamed as they have not performed their duties.

Terming the situation of stubble burning in Punjab, Haryana and Uttar Pradesh as “alarming”, the Court noticed that despite its order prohibiting it, burning of crop residues in these states have increased. It, hence, pulled up the chief secretaries of Punjab, Haryana and Uttar Pradesh for their failure to prevent instance of stubble burning despite the Court’s order. It said,

“Only policy making to deal with pollution is not required, the real issue needed was implementation at the ground level.”

The bench is due to take up the pollution related matters on December 16.

(Source: PTI)

Case BriefsSupreme Court

Supreme Court: In a case challenging the grant of an Environmental Clearance (EC) for the development of a greenfield international airport at Mopa in Goa, the Bench of Dr. DY Chandrachud and Hemant Gupta, JJ directed Expert Appraisal Committee (EAC) to revisit the conditions subject to which it granted its EC within a month.

Appraisal by the EAC

The Court explained ‘Appraisal by the EAC’ as structured and defined by the 2006 notification. It said that the process of appraisal is defined to mean “a detailed scrutiny” by the EAC of the application and other documents like the EIA report and the outcome of the public consultation, including the public hearing proceedings, submitted by the applicant to the regulatory authority for the grant of an EC. The EAC is under a mandate to conduct the process of appraisal in “a transparent manner”. On the conclusion of these proceedings, the EAC has to make “categorical recommendations” to the regulatory authority. The recommendations made by the EAC to the regulatory authority must be based on “reasons”. Considering this, the Court noticed,

“That the project proponent must submit all information and data without concealing relevant features is a basic hypothesis and expectation of the 2006 notification. The EAC has, in the brief reasons which are contained in para 3.1.2, not applied its mind at all to the environmental concerns raised in relation to the project nor do its reasons indicate an appraisal of those concerns by evaluating the impact of the project.”

Hence, the Court said the appraisal by the EAC in the present case neither the process of decision making nor the decision itself can pass legal muster.

Failure of due process

On EAC:

“The EAC, as an expert body abdicated its role and function by taking into account circumstances which were extraneous to the exercise of its power and failed to notice facets of the environment that were crucial to its decision making. The 2006 notification postulates that normally, the MoEFCC would accept the recommendation of the EAC. This makes the role of the EAC even more significant.”

On NGT:

“The NGT is an adjudicatory body which is vested with appellate jurisdiction over the grant of an EC. The NGT dealt with the submissions which were urged before it in essentially one PART J 90 paragraph. It failed to comprehend the true nature of its role and power under Section 1(h) and Section 20 of the NGT Act 2010. In failing to carry out a merits review, the NGT has not discharged an adjudicatory function which properly belongs to it.”

Directions

  • Until the EAC carries out the fresh exercise as directed above, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended;
  • Upon reconsidering the matter in terms of the present directions, the EAC, if it allows the construction to proceed will impose such additional conditions which in its expert view will adequately protect the concerns about the terrestrial eco systems noticed in this judgment. The EAC would be at liberty to lay down PART K appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment;
  • The EAC shall have due regard to the assurance furnished by the concessionaire to this Court that it is willing to adopt and implement necessary safeguards bearing in mind international best practices governing greenfield airports;
  • State of Goa as the project proponent and the MoEFCC, as the case may be, has the liberty to file the report of the EAC before this Court in the form of a Miscellaneous Application so as to facilitate the passing of appropriate orders in the proceedings; and
  • No other Court or Tribunal shall entertain any challenge to the report that is to be submitted before this Court by the EAC in compliance with the present order.

[Hanuman Laxman Aroskar v. Union of India, 2019 SCC OnLine SC 441, decided on 29.03.2019]

Case BriefsSupreme Court

Supreme Court: The bench of RF Nariman and Navin Sinha, JJ has refused to allow reopening of Vedanta’s Sterlite plant in Tamil Nadu’s Tuticorin, which was at the centre of massive protests over pollution concerns. It, however, granted the company liberty to approach the Madras High Court.

The Vedanta group was, hence, seeking a direction to Tamil Nadu Pollution Control Board (TNPCB) to implement the National Green Tribunal (NGT) order which had set aside the government’s decision to close the plant. The state had, however, moved the Supreme Court, saying the NGT had “erroneously” set aside various orders passed by the TNPCB last year with regard to the Sterlite plant. It had said the tribunal had consequentially directed the TNPCB to pass fresh orders of renewal of consent and issue authorisation to handle hazardous substances to Vedanta Limited.

The bench allowed Tamil Nadu’s appeal against the NGT order on grounds of maintainability and said the tribunal has no jurisdiction to order reopening of the plant. It said:

“If an appellate authority is either not yet constituted, or not properly constituted, a leapfrog appeal to the NGT cannot be countenanced. As has been held by us supra, the NGT is only conferred appellate jurisdiction from an order passed in exercise of first appeal. Where there is no such order, the NGT has no jurisdiction.”

The Court, hence, held that since an appeal was pending before the appellate authority when the NGT set aside the original order dated 09.04.2018, the NGT’s order being clearly outside its statutory powers conferred by the Water Act, the Air Act, and the NGT Act, would be an order passed without jurisdiction.

The Court, however, directed that it will be open for the respondents to file a writ petition in the High Court against all the aforesaid orders. It added:

“If such writ petition is filed, it will be open for the respondent to apply for interim reliefs considering that their plant has been shut down since 09.04.2018. Also, since their plant has been so shut down for a long period, and they are exporting a product which is an important import substitute, the respondent may apply to the Chief Justice of the High Court for expeditious hearing of the writ petition, which will be disposed of on merits notwithstanding the availability of an alternative remedy in the case of challenge to the 09.04.2018 order of the TNPCB.”

Background of the case:

  • At least 13 people were killed and several injured on May 22 last year when police had opened fire on a huge crowd of people protesting against environment pollution being allegedly caused by the factory.
  • The Tamil Nadu government had, on May 28, ordered the state pollution control board to seal and “permanently” close the mining group’s copper plant following violent protests over pollution concerns.
  • On December 15, the NGT had set aside the state government’s order for closure of the Sterlite copper plant, saying it was “non sustainable” and “unjustified”.

[Tamil Nadu Pollution Control Board v. Sterlite Industries (I) Ltd., 2019 SCC OnLine SC 221, decided on 18.02.2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Manoj Kumar Tiwari, J. and Rajiv Sharma, ACJ., gave directions as to the use and sale of plastic in the State.

The Court took judicial notice of the news item published in daily edition of ‘Hindustan’ newspaper wherein it was stated as to how polythene was damaging the ecology of the environment and consequently it expressed its concern over the havoc created by plastic and demanded the authorities to contribute towards sweeping away the damages caused by the plastic from the State. It was observed that “Polythene is polluting the fragile environment and ecology of the State of Uttarakhand. It has also now entered into the river system and drainage system. It has reduced the fertility of the land. The stray cattle are also consuming polythene, causing grave harm to their health.”

Accordingly, the respondent was directed to apprise the Court about the implementation of the directions issued by it along with the initiative undertaken by the Chief Minister of Uttarakhand to eradicate the polythene menace. Also, the District Magistrates throughout the State were directed to launch special initiative to check the sale and use of polythene. [Ban on the use of polythene in Uttarakhand, In re, WP(PIL) No. 132 of 2018, order dated 07-09-2018]

Hot Off The PressNews

Supreme Court: The Madan B. Lokur and Deepak Gupta, JJ directed the National Highways Authority Of India (NHAI) to ensure that the newly constructed Eastern Expressway, which is aimed at decongesting Delhi, is thrown open to public from June 1 even if the Prime Minister cannot inaugurate it by then/ The Bench said that “any delay will not be in interest of people.”

NHAI had told the Court that the expressway was scheduled to be inaugurated by Prime Minister Narendra Modi on April 29 but it could not be done due to his prior commitments. The Bench took exception to the 135-km Expressway, which envisages signal-free connectivity between Ghaziabad, Faridabad, Gautam Budh Nagar (Greater Noida) and Palwal, not being thrown open to the public despite being informed earlier that it would be inaugurated by April 20.

The Eastern and Western Peripheral Expressways were planned in 2006 following Supreme Court’s order to build a ring road outside the national capital for channelling non-Delhi bound traffic. The Supreme Court had asked the Centre in 2005 to build a peripheral expressway around Delhi by July 2016 to decongest and “de-pollute” the national capital.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Showing dismay over large-scale illegal mining of iron ore and manganese ore in the State of Goa, the bench of Madan B. Lokur and Deepak Gupta, JJ issued several directions to ensure implementation of mining related environment protection laws and said:

“For the State to generate adequate revenue through the mining sector and yet have sustainable and equitable development, the implementation machinery needs a tremendous amount of strengthening while the law enforcement machinery needs strict vigilance. Unless the two marry, we will continue to be mute witnesses to the plunder of our natural resources and left wondering how to retrieve an irretrievable situation.”

Clarifying the directions issued by the Court in Goa Foundation v. Union of India, (2014) 6 SCC 590, on 21st April 2014, the Bench said that as per the said decision, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders. Also, the State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.

The Court noticed:

“The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore, not in the interests of mineral development. The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act.”

The Bench also clarified that the Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012.

Hence, the Court set aside the second renewal of the mining leases granted by the State of Goa is liable to be set aside and issued the following directions:

  • The mining lease holders who have been granted the second renewal in violation of the decision and directions of this Court in Goa Foundation are given time to manage their affairs and may continue their mining operations till 15th March, 2018. However, they are directed to stop all mining operations with effect from 16th March, 2018 until fresh mining leases (not fresh renewals or other renewals) are granted and fresh environmental clearances are granted.
  • The State of Goa should take all necessary steps to grant fresh mining leases in accordance with the provisions of the Mines and Minerals (Development and Regulation) Act, 1957. The Ministry of Environment and Forest should also take all necessary steps to grant fresh environmental clearances to those who are successful in obtaining fresh mining leases. The exercise should be completed by the State of Goa and the Ministry of Environment and Forest as early as reasonably practicable.
  • The State of Goa will take all necessary steps to ensure that the Special Investigation Team and the team of Chartered Accountants constituted pursuant to the Goa Grant of Mining Leases Policy 2014 give their report at the earliest and the State of Goa should implement the reports at the earliest, unless there are very good reasons for rejecting them.
  • The State of Goa will take all necessary steps to expedite recovery of the amounts said to be due from the mining lease holders pursuant to the show cause notices issued to them and pursuant to other reports available with the State of Goa including the report of Special Investigation Team and the team of Chartered Accountants.

In Goa Foundation case, it was held that all the iron ore and manganese ore leases had expired on 22nd November, 2007 and hence, any mining operation carried out by the mining lease holders after that date was illegal. It was also held that all the mining lease holders had enjoyed a first deemed renewal of the mining lease and for a second renewal an express order was required to be passed in view of and in terms of Section 8(3) of the MMDR Act. [Goa Foundation v. Sesa Sterlite Ltd., 2018 SCC OnLine SC 98, decided on 07.02.2018]

Case BriefsSupreme Court

Supreme Court: In the issue relating to demolition of the parking lot, being constructed near the eastern gate of Taj Mahal, the Additional Solicitor General Tushar Mehta submitted before the Court that he will file the comprehensive policy with regard to the entire issue of pollution in the Taj Trapezium Zone and the nearby areas within two weeks.

The bench of Madan B. Lokur and Deepak Gupta had earlier on 24.10.2017, ordered demolition of the parking lot, being constructed near the eastern gate of Taj Mahal while hearing the petition filed by environmentalist M C Mehta, who has been monitoring development in the area to protect the Taj Mahal from the ill effects of polluting gases and deforestation in and around the area.

On 25.10.2017, Uttar Pradesh State’s counsel Aishwarya Bhati told the bench headed by J. Chelameswar, J that she could not appear before the court on 24.10.2017 when the matter was called up for hearing before a bench headed by Justice Madan B Lokur, due to which the demolition order was passed. The Court hence, agreed to hear the restoration plea.

The matter will now be heard on 15.11.2017. Status quo will be maintained till then. [MC Mehta v Ministry of Environment and Forests,  2017 SCC OnLine SC 1280, order dated 27.10.2017]

Hot Off The PressNews

Supreme Court: The Court agreed to hear the Uttar Pradesh government’s restoration plea against its order to demolish a multi-level car parking facility being built within a kilometer of the Taj Mahal. The hearing will take place on October 27, 2017.

State’s counsel Aishwarya Bhati told the bench headed by J. Chelameswar, J that she could not appear before the court yesterday when the matter was called up for hearing before a bench headed by Justice Madan B Lokur, due to which the demolition order was passed.

The Court had, on 24.10.2017, ordered demolition of the parking lot, being constructed near the eastern gate of Taj Mahal while hearing the petition filed by environmentalist M C Mehta, has been monitoring development in the area to protect the Taj Mahal from the ill effects of polluting gases and deforestation in and around the area.

Source: PTI

 

Case BriefsSupreme Court

Supreme Court: The bench of Madan B lokur and Deepak Gupta, JJ directed the Executive in all the States to frame appropriate guidelines or recruitment rules within six months, considering the institutional requirements of the State Pollution Control Boards (SPCBs) and the law laid down in the Statutes, by this Court and as per the reports of various committees and authorities and ensure that suitable professionals and experts are appointed to the SPCBs.

The Court was hearing the appeal against the decision of the National Green Tribunal where it was held that the necessary expertise or qualifications to be members or chairpersons of such high powered and specialized statutory bodies and therefore did not deserve their appointment or nomination. The Court, agreeing with the reasoning of the Tribunal, set aside the order as the Tribunal had exceeded its jurisdiction in directing the State Governments to reconsider the appointments and in laying down guidelines for appointment to the SPCBs.

The Court referred to a number of recommendations of various committees, the laws laid down in various Statutes and Judgements and said:

“All these suggestions and recommendations are more than enough for making expert and professional appointments to the SPCBs being geared towards establishing a professional body with multifarious tasks intended to preserve and protect the environment and consisting of experts. Any contrary view or compromise in the appointments would render the exercise undertaken by all these committees completely irrelevant and redundant.”

The Court, noticing that notwithstanding all these suggestions, recommendations and guidelines the SPCBs continue to be manned by persons who do not necessarily have the necessary expertise or professional experience to address the issues for which the SPCBs were established by law, said that the concern is not one of a lack of professional expertise, but the lack of dedication and willingness to take advantage of the resources available. It further said:

“With this couldn’t-care-less attitude, the environment and public trust are the immediate casualties.”

The Court said that any damage to the environment could be permanent and irreversible or at least long-lasting and

“unless corrective measures are taken at the earliest, the State Governments should not be surprised if petitions are filed against the State for the issuance of a writ of quo warranto in respect of the appointment of the Chairperson and members of the SPCBs.”

The Court left it open to public spirited individuals to move the appropriate High Court for the issuance of a writ of quo warranto if any person who does not meet the statutory or constitutional requirements is appointed as a Chairperson or a member of any SPCB or is presently continuing as such. [Techi Tagi Tara v. Rajendra Singh Bhandari, 2017 SCC OnLine SC 1165 , decided on 22.09.2017]

 

Case BriefsSupreme Court

Supreme Court: Considering the necessity to give precedence to the health of the people in Delhi and in the NCR over any commercial or other interest, the bench of Madan B Lokur and Deepak Gupta, JJ issued elaborate directions and  said that keeping in mind the adverse effects of air pollution, the human right to breathe clean air and the human right to health, the Central  Government and other authorities should consider encouraging display fireworks through community participation rather than individual bursting of fireworks.

The directions issued by the Court are as follows:

  • The concerned police authorities and the District Magistrates will ensure that fireworks are not burst in silence zones that is, an area at least 100 meters away from hospitals, nursing homes, primary and district health-care centres, educational institutions, courts, religious places or any other area that may be declared as a silence zone by the concerned authorities.
  • The Delhi Police is directed to reduce the grant of temporary licences by about 50% of the number of licences granted in 2016. The number of temporary licences should be capped at 500.
  • The Union of India will update and revise and ensure strict compliance with the Notification dated 27th January, 1992 regarding the ban on import of fireworks.
  • The Department of Education of the Government of NCT of Delhi and the corresponding Department in other States in the NCR shall immediately formulate a plan of action, in not more than 15 days, to reach out to children in all the schools through the school staff, volunteers and NGOs to sensitize and educate school children on the health hazards and ill-effects of breathing polluted air, including air that is polluted due to fireworks. School children should be encouraged to reduce, if not eliminate, the bursting of fireworks as a part of any festivities.
  • Fireworks containing aluminium, sulphur, potassium and barium may be sold in Delhi and in the NCR, provided the composition already approved by Petroleum and Explosives Safety Organization (PESO) is maintained. However, the use of compounds of antimony, lithium, mercury, arsenic and lead in the manufacture of fireworks as well as the use of strontium chromate in the manufacture of fireworks is prohibited.
  • 50,00,000 kg of fireworks is far more than enough for Dussehra and Diwali in 2017, hence, transport of fireworks into Delhi and the NCR from outside the region is prohibited and the concerned law enforcement authorities will ensure that there is no further entry of fireworks into Delhi and the NCR till further orders. The permanent licensees are at liberty to take measures to transport the stocks outside Delhi and the NCR.
  • The suspension of permanent licences as directed by the order dated 11th November, 2016 is lifted for the time being. However, the suspension might be reviewed after Diwali depending on the ambient air quality post Diwali.
  • Research study must be jointly carried out by the Central Pollution Control Board (CPCB) and the Fireworks Development Research Centre (FDRC) laying down appropriate standards for ambient air quality in relation to the bursting of fireworks and the release of their constituents in the air. Also, a research study needs to be conducted on the impact of bursting fireworks during Dussehra and Diwali on the health of the people.

The Court appointed a Committee to be chaired by the Chairperson of the CPCB and consisting of officers at the appropriate level from the National Physical Laboratory, Delhi, the Defence Institute of Physiology and Allied Sciences, Timarpur, Delhi, the Indian Institute of Technology-Kanpur, scientists from the State Pollution Control Boards, the Fire Development and Research Centre, Sivakasi and Nagpur and the National Environment Engineering Research Institute (NEERI) nominated by the Chairperson of the CPCB to submit a report in this regard preferably on or before 31st December, 2017. [Arjun Gopal v. Union of India, 2017 SCC OnLine SC 1071, decided on 12.09.2017]

 

Case BriefsSupreme Court

Supreme Court: Concerned over a mining scandal of enormous proportions involving megabucks in the State of Odisha, the bench of Madan B. Lokur and Deepak Gupta, JJ said that though the Court cannot lay down limits on the extent of mining activities that should be permitted by the State of Odisha or by the Union of India, this is an aspect that needs serious consideration by the policy and decision makers in our country in the governance structure. The Court hence, directed the Union of India to revisit the National Mineral Policy, 2008 and announce a fresh and more effective, meaningful and implementable policy within the next few months and in any event before 31st December, 2017.

Taking note of the indiscriminate mining operations in Odisha, the Court said there is no effective check on mining operations nor is there any effective mining policy. Regarding the National Mineral Policy, 2008, the Court said that the same seems to be only on paper and is not being enforced perhaps due to the involvement of very powerful vested interests or a failure of nerve. The Court also said that the Policy was almost a decade old and the variety of changes that have taken place since then, including the advent of rapacious mining in several parts of the country, it was necessary that a new updated Policy was brought in.

Directing the constitution of an Expert Committee under the guidance of a retired Supreme Court judge for identifying the lapses that have occurred over the years enabling rampant illegal or unlawful mining in Odisha and measures to prevent this from happening in other parts of the country, the Court said that undoubtedly, there have been very serious lapses that have enabled large scale mining activities to be carried out without forest clearance or environment clearance and eventually the persons responsible for this will need to be booked but as mentioned above, the violation of the laws and policy need to be prevented in other parts of the country. The rule of law needs to be established.

The Court issued the above directions in the light of the rapaciously mining of iron ore and manganese in the districts of Keonjhar, Sundergarh and Mayurbhanj in Odisha that has apparently destroyed the environment and forests and has caused untold misery to the tribals in the area. [Common Cause v. Union of India, 2017 SCC OnLine SC 857, decided on 02.08.2017]

 

Case BriefsSupreme Court

Supreme Court: Explaining the reasons for the order dated 29.03.2017, where it was directed that on and from 1st April, 2017 such vehicles that are not BS-IV compliant shall not be sold or registered in India by any manufacturer or dealer, the Court said that considering the life of such vehicles ranges from 10 to 15 years, the concern is not only for the present population of the country but for future generations who also have an entitlement to breathe pollution free air. This is what sustainable development and inter-generational equity is all about.

Rejecting the argument that every Notification issued by the Government in relation to prohibition of sale of any vehicle not complying with BS-IV Emission norms over the course of years should be interpreted literally, the Court said that if the entire scheme laid out by the Government – of discouraging the manufacture of polluting vehicles and gradually phasing them out coupled with their gradual replacement with fuel efficient vehicles, availability of cleaner and greener fuel and compliance with fuel emission norms is appreciated in a much larger context rather than on a notification by notification basis – the objective behind the scheme would be apparent. The Court said that the Government could very well have issued one single notification way back in 2010 that with effect from 1st April, 2017 but it did not do so to enable all concerned, particularly the auto industry and marketing strategists to gradually manage their affairs rather than subject them to a sudden future shock. The scheme of a gradual phase-out is now sought to be perverted through a literal interpretation of each notification, unfortunately, for a commercial benefit rather than being appreciated in a larger canvas for the benefit of society as a whole.

Lashing out at the interveners, the bench of Madan B. Lokur and Deepak Gupta, JJ said that rather than admit responsibility for a lack of concern of public health issues, some of the interveners have sought to blame Environment Pollution Control Authority (EPCA) for its failure to approach the Government of India to seek amendments to the notifications issued from time to time and to incorporate a prohibition on the sale and registration of BS-III compliant vehicles on or after 1st April, 2017. It was noticed that the EPCA had convened a meeting of all stakeholders on 19th October, 2016 and had brought to the notice of the representatives of SIAM that there would be no sale and registration of BS-III compliant vehicles from 1st April, 2017 and that this should be communicated to all manufacturers in order to give sufficient notice of almost six months to enable the automobile industry to plan its production and sale and take pro-active steps to significantly decrease the production of such vehicles. Therefore, to blame EPCA for their problems is rather unfair of the interveners.

The Court said that it is time to realize that a collective effort is needed to clear up the air. In this process, the interveners have a huge role and they should now wake up to their responsibility for the benefit of all. [M.C. Mehta v. Union of India, 2017 SCC OnLine SC 394, decided on 13.04.2017]

Case BriefsHigh Courts

Delhi High Court: Hearing a public interest litigation seeking directions to the Ministry of Environment, Government of NCT of Delhi to take steps under the provisions of the Environment (Protection) Act, 1986 and other relevant Acts to prohibit the manufacture, use, sale and purchase of manja/nylon kite thread and similar synthetic threads used in kite flying, the Court directed the Government to issues advisories within 3 days from the date of order to make the public aware of the fatal effects of such razor sharp threads.

The petitioner contended that  the thread used for flying of kites which is made of nylon or synthetic material and other toxic materials, often referred to as “Chinese manja” though it has nothing to do

with China, being razor sharp is very dangerous and capable of causing severe injuries to birds and humans and that the present case fell within the ambit of Rule 4(5) of the Environment (Protection) Rules, 1986 and therefore prohibitory orders be issued by the Government without inviting objections from public.

The Standing Counsel Mr Rahul Mehra submitted that a proposed draft notification in relation to imposing a complete ban on sale, production, storage, supply and use of nylon, plastic and Chinese manja and other kite-flying thread that is sharp or made sharp such as being laced with glass, metal or other sharp objects in National Capital Territory of Delhi was ready and the same had been forwarded to the Law Department, Government of NCT of Delhi for vetting. Since the notification cannot be issued immediately, advisories may be issued to create awareness among the public.

Though the petitioner had brought to the Court’s notice a few incidents based on newspaper reports, the Court was of the view that more material and adequate data was required to be collected and evaluated, and opportunity be given to raise objections, before prohibiting or restricting the handling of hazardous substances in accordance with the provisions of the Environment (Protection) Rules, 1986. Disposing of the petition, the Court issued the following directions:

  • Office of the Divisional Commissioners/ Directorate of Information & Publicity and all the Municipal Corporations shall issue advisories within 3 days from today through various modes to make the public aware of the fatal effects of use of razor sharp thread/manja made of nylon/plastic/synthetic using glass/metal and/or other toxic materials.
  • Steps be taken by the Commissioner of Delhi Police to ensure that advisories are issued by all concerned authorities in terms of the above direction so as to prevent any untoward incidents in Delhi.
  • Government of NCT of Delhi is directed to expedite the process of inviting suggestions or objections from the general public and thereafter to issue the notification following the procedure laid down under the Environment (Protection) Act, 1986 read with the Environment (Protection) Rules, 1986, to tackle the adverse effects of razor sharp kite flying threads on humans as well as other living creatures as expeditiously as possible.

[Zulfiquar Hussain  v.  Government of NCT of Delhi2016 SCC OnLine Del 4488, decided on August 10, 2016]