NGT

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): A Division Bench of K. Ramakrishnan (Judicial Member) and Saibal Dasgupta (Expert Member), directed to stop the cutting of coconut trees in Agabatti Island Lakshadweep and ordered to maintain status quo.

Main Grievance

Indiscriminate cutting of coconut trees in Agatti Island, Lakshadweep for the purpose of formation of beach road which is against the Integrated Island Management Plan of Lakshadweep which was formulated on the basis of the report of the Expert Committee headed by Justice R.V. Raveendran, former Judge of Supreme Court of India appointed by the Supreme Court, in this regard.

Due to the cutting of trees, local residents are not only affected by loosing their income but also it would affect the environment as trees standing along the coastal line act as a green belt to protect the land during natural calamities.

Bench in view of the above, stated that a substantial question of environment arises which requires tribunal’s interference.

Tribunal appointed a Joint Committee to assess the damage that is likely to be caused.

The Committee is also directed to go into the question as to whether there was any violation of the Integrated Island Management Plan of Lakshadweep approved by the Lakshadweep Administration.

Status report is to be submitted by 3-11-2020 and till then respondent 3 and 4 are directed to maintain status quo and not to cut any coconut trees till next hearing date. [Agatti Island,Lakshadweep v. UOI, OA No. 132 of 2020 (SZ), decided on 30-07-2020]

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, dismissed the application for modification of the order of tribunal and ordered the party to make the deposit payment immediately.

On 3-06-2020, the chemical factory of Yashyashvi Rasayan Pvt. Ltd. encountered a massive blast when a fire lit up in the storage tank of the factory. Eight workers were killed and at least 50 injured. About 4800 inhabitants of the nearby villages had to be moved to safer place on account of the incident. An NGO from Surat, Aryavart Foundation, filed an application against the company before NGT, where the tribunal assessed the total amount to be Rs 25 Crores on account of compensation to the families of the dead victims, injured victims and the ones who had to be displaced. The company moved to the Supreme Court against the order of the tribunal. The Supreme Court, on 22-06-2020, after hearing both the sides, decided that company should approach NGT for modification of order and gave the company 10 days to make the payments omitting the charges for displaced persons as they had to be further decided.

The main ground for seeking modification of order of the Tribunal was that the persons displaced were brought back to their homes on the very same day, no damage was caused to their person or property and there was no permanent migration. Therefore, the company’s prayer was to recall direction to pay the remaining amount of Rs 22.075 crores.

Bench decided that they did not find any merit in the prayer of the applicant. According to them, the impugned order was passed after preliminary verification of facts and after notice to the applicant and not just media report alone. Further, on the issue of displacement, the bench laid emphasis on the impact which the blast had made on the environment and the people whose faced the trauma said, “Displacement was at large scale creating anxiety, fear, trauma, and misery. Some families may have minor children or senior citizens, females who certainly are bound to greatly suffer by such large scale and sudden displacement from their houses. Exact damage is to be fully ascertained but even as per conservative estimate, the amount of compensation of Rs 25,000/- to each displaced person cannot, in our view, be held to be excessive, even on further consideration. There is no golden scale to measure such loss and a reasonable estimate has to be the basis.” On the gravity of compensation to be paid within prescribed time, the tribunal emphasised ,“It is against interest of justice to further delay deposit and disbursement of the amount to the victims of the tragedy as almost two months have passed from the date of the incident.” Therefore, the court dismissed the application for modification.[Aryavart Foundation v. Yashashvi Rasayan (P) Ltd.  ,I.A. No. 237 of 2020, decided on 30-07-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Coram of  Justice Adarsh Kumar Goel (Chairperson), Justice S. P. Wangdi (Judicial Member), Dr Satyawan Singh Garbyal (Expert Member) and Dr Nagin Nanda (Expert Member), reprimanded the State of Haryana over unscientific dumping of municipal waste in Palwal, Haryana.

The applicant filed the application in grievance against the illegal and unscientific dumping of municipal solid waste in Village Meghpur, District Palwal, Haryana, in violation of the Solid Waste Management Rules, 2016 and non-removal of legacy waste as per law and was also affecting the village pond. The applicant also referred to the previous orders passed by the tribunal in 2019, which exhibited continuation of dumping of municipal solid waste  and the Municipal Council to have not taken any action in the matter despite being directed by the tribunal.

The applicant was represented by Rahul Choudhary, Advocate, and the respondent was represented by Rahul Khurana, Advocate.

The respondent did not disputed that unscientific dumping of municipal waste is taking place in violation of law, but contested that the waste would be treated by composting/recycling and remaining waste will be sent to dump site.

Tribunal stated, “Mere proposed steps are not a valid defence to the criminal failure of the authorities when stringent punishments are contemplated under the law for such failure as there is continued damage to the public health by such failure” and said that “accountability has to be fixed”.

Therefore, the tribunal directed the necessary State bodies to ensure compliance of Municipal Solid Management Rules failing which would leave the Court with no option except to take coercive measures, including direction for prosecution and stoppage of salary.[SND Public School v. State of Haryana, Original Application No. 391 of 2019, decided on 14-07-2020]

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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Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal: A 3-Member Bench of A.K. Goel, Chairperson, and Sheo Kumar Singh, Judicial Member, and Dr Nagin Nanda, Executive Member, held that it was well within NGT’s jurisdiction to pass the earlier order dated 8th May 2020 wherein it had directed LG Polymers (India) (P) Ltd. to forthwith deposit an initial amount of Rs 50 crores with the District Magistrate, Vishakhapatnam. The NGT had taken suo motu cognizance of the deadly gas leak in a factory owned by LG Polymers at Vishakhapatnam.

By the instant order, the NGT gave further directions which are summarised herein:

Directions

(i) The amount of Rs. 50 crores deposited by LG Polymers with the DM, Vishakhapatnam, will stand appropriated towards part liability and interim compensation to be spent for restoration of the environment and compensation for victims in accordance with the restoration plan to be prepared.

(ii) Restoration plan may be prepared by a Committee comprising 2 representatives each of Ministry of Environment, Forest and Climate Change (“MoEF”) and Central Pollution Control Board (“CPCB”) and 3 representatives of the State Government to be named by the Chief Secretary, including the DM, Vishakhapatnam, within 2 months.

(iii) Final quantification of compensation may be assessed by a Committee comprising representatives of MoEF, CPCB and NEERI (National Environmental Engineering Research Institute). The said Committee will be at liberty to associate/co-opt any other expert institution or individual. The Secretary, MoEF may ensure constitution of such Committee within 2 weeks. The Committee may give its report within 2 months thereafter.

(iv) The Chief Secretary, Andhra Pradesh, may identify and take appropriate action against persons responsible for failure of law in permitting the Company to operate without statutory clearances within 2 months and give a report to the NGT.

(v) In view of the stand of the State Pollution Control Board and LG Polymers that it will not recommence its operation without requisite statutory clearances, NGT directed that if any such statutory clearances are granted and LG Polymers proposes to recommence, this aspect must be brought to the notice of the NGT so that compliance of law is ensured.

(vi) The MoEF may also constitute an Expert Committee to suggest ways and means to revamp monitoring mechanism to check and prevent violation of environmental norms and preventing any such recurrence in future in any of the establishments dealing with hazardous chemicals. A special drive may be initiated in this regard. An action taken report may be furnished within 3 months.

(vii) This order will not prejudice any criminal or other statutory proceedings in accordance with law.     

Timeline

The incident around which this whole issue revolves occurred in the wee hours of 7th May 2020 when reports started coming in that Styrene – a hazardous gas – has leaked from a chemical factory in R.R. Venkatpuram Village, Pendurthy Mandal, Vishakhapatnam. This resulted in the death of 11 persons (now 12) and hospitalisation of more than 100 people. More than 1000 people were reported sick. There was also damage to environment and habitat. The factory from which the gas leaked belonged to LG Polymers.

On 8th May 2020, the very next day, the National Green Tribunal initiated suo motu proceedings in the matter, and having regard to the prima facie material as to the loss of lives, public health and environment and liability of the Company engaged in inherently hazardous activity, directed the Company to forthwith deposit an initial amount of Rs 50 crores with the District Magistrate, Vishakhapatnam. BY this order, the NGT also constituted a 6-member Committee to visit the site of the incident and submit its report. 

Notably, as soon as the incident occurred, the Andhra Pradesh High Court too took suo motu cognizance of the matter and directed the State Government to constitute of committee of appropriate officers not below the rank of Principal Secretaries.

On 14th May 2020, LG Polymers approached the Supreme Court against the above order passed by the NGT. Senior Advocate Mukul Rohatgi, who appeared for LG Polymers before the Supreme Court, challenged the constitution of the 6-member Committee by NGT. According to him, there was no occasion for NGT to appoint this further Committee when the High Court has already directed appointing of the Committee while taking suo motu cognizance. He also referred to some orders passed by the Supreme Court where the question whether the NGT could take suo motu cognizance of any matter was squarely in issue. While posting the matter for 8th June 2020, the Supreme Court gave liberty to LG Polymers to raise their contentions before the NGT.

Discussion

A. Suo motu jurisdiction

Rejecting the objection raised by LG Polymers to the taking of suo motu cognizance, the NGT noted that it has the purpose and power to provide relief and compensation to victims of environment damage, restitution of property, and restoration of environment. To effectuate this purpose, NGT has wide powers to devise its own procedure. In appropriate circumstances, this power includes the power to institute suo motu proceedings and not keep its hands tied in the face of drastic environmental damage and serious violation of right to life, public health and damage to property. This is especially so when the victims are marginalised and/or by reason of poverty or disability or socially or economically disadvantaged position cannot approach the NGT. The power is coupled with duty to exercise such powers for achieving the enumerated objects. Failure to exercise suo motu jurisdiction in such circumstances would render these victims without remedy, causing irretrievable injustice and breakdown of Rule of Law.

It was stated:

“If NGT were powerless to institute suo motu proceedings where so warranted, as in the present case, it would be robbed of all its efficacy, because then the situation would be that if environmental damage causes loss of life, public health and property, the court can grant relief only if the victims found the means to approach it first. Such limitation, to a large extent, would emasculate NGT’s raison d’etre, and render it nugatory and futile.”

Referring to various provisions of the National Green Tribunal Act, 2010 and several decision of the Supreme Court including State of Meghalaya v. All Dimasa Students Union, (2019) 8 SCC 177; Bhopal Gas Peedith Mahila Udyog v. Union of India, (2012) 8 SCC 326 and M.C. Mehta v. Union of India, (1987) 1 SCC 395, the NGT observed:

“If this Tribunal is prevented from instituting suo-motu proceedings, these issues and violations [serious issues of environment, including air, water, soil, and other life-threatening pollution] would remain unaddressed, citizens’ inalienable right to life and other rights will stand jeopardized, and the serious and irreversible environment damage would continue unchecked.”

B. Pendency of proceedings before the High Court

As regards pendency of proceedings in the High Court and other fora, and the Committees appointed by the various fora, the NGT noted that there is no conflict on the core issue being considered by it, a specialised Tribunal, as per mandate of law in judgements of the Supreme Court. The NGT stated:

“The fact remains that the specialised statutory jurisdiction to award compensation is conferred on this Tribunal, which also has all and wide powers, procedure and mechanisms to resolve and award appropriate relief and remedies. Our attention has not been drawn to any other committee or court going in to the issue of compensation and restitution to the victims to the environment. Only this Tribunal has required deposit of an amount to be used for compensation, to be disbursed under orders of this Tribunal. Even the Company has deposited the amount and cannot object to abide by further orders in this regard. Thus, without prejudice to any other proceedings, the Tribunal can perform and exercise its statutory jurisdiction.”

C. Strict and absolute liability of LG Polymers

Considering all the material, the NGT found that LG Polymers has strict and absolute liability for the environmental damage and consequential loss including to life and public health in this case. The stand of MoEF and the State PCB is unequivocal that LG Polymers did not have the requisite Environment Clearance (“EC”). There is also clear violation of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989. Liability of LG Polymers is strict and absolute in the circumstances. The report of the Joint Committee constituted by the NGT filed on 28th May 2020 found LG Polymers liable. It opined that LG Polymers did not take proper care of the storage tank resulting in auto polymerization of styrene releasing excess heat which escaped from the goose-neck and dip hatch in the form of vapour. It is also mentioned that the unit was operating without the requisite EC. The State PCB had no clarity in the matter while granting the statutory consents without EC. This report is supported by clinching material consistent with the stand of the MoEF and State PCB.

D. Failure of Authorities and need for remedial measures

The NGT was of the view that further remedial action needs to be taken in the matter of bringing to justice erring officers of authorities in the State of Andhra and liability of the State or officers being further gone into. There is also need for rehabilitation plan utilising the interim and further compensation. Lastly, regulatory framework needs to be reviewed and strengthened, apart from identifying steps to ensure compliance of laid down safety norms and laying down further norms and procedure to avoid recurrence of such failures in future. The NGT said:

“Safety of citizens and environment are of prime concern. Any economic or industrial activity, however necessary, has to be consistent with the safety of human beings and the environment. The damage to human life, human health and environment has to be restored by applying the ‘Sustainable Development’ principle, of which ‘Precautionary’ and ‘Polluter Pays’ principles are part. In this regard, significant role has to be played by the statutory authorities constituted under the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.”

In view of such discussion and findings, the NGT issued the further directions as mentioned hereinabove. The matter is directed to be listed for further consideration on 3rd November 2020. [Gas Leak at LG Polymers Chemical Plant in Vishakhapatnam, In re, 2020 SCC OnLine NGT 129 , decided on 1-6-2020]

Case BriefsCOVID 19High Courts

Andhra Pradesh High Court: A Division Bench of Jitendra Kumar Maheshwari, CJ and Lalitha Kanneganti, J., addressed certain PILs that were filed in regard to the LG Polymers poisonous gas leakage incident.

Petition was filed seeking direction or any appropriate writ calling for records relating to leakage of poisonous gas from LG Polymers factory at Visakhapatnam and further directing respondents to save lives of people in around the factory by providing necessary medical facilities.

Another petition was filed wherein direction was sought as respondents were not providing financial and medical facilities to people affected by incident also directing LG Polymers company management to give compensation fo Rs 2 crores as compensation to the deceased families and 50 lakhs to every injured person, 50,000 to deceased cattle as well as 5,00,000 to damaged standing crop of farmers.

Adding to the above, company be seized and directed to shift far off from Visakhapatnam.

Bench held that as asked by the Court in its 7th May Order with regard to the said incident, action report was to be filed by 20th May, 2020. State and centre filed their affidavits along with material to show the efforts made by them.

Court observed that the action reports were silent on the following issues:

  • LG Polymers has been operating without a valid Environmental Clearance from the MoEFCC.
  • Inhibitor concentration in the storage tank was not checked. Refrigeration system was not working properly.
  • Radius of the vulnerable zone extended upto 6.3km from the source.
  • There are several hospitals, education institutions, places of worship, railway stations and airport within the vulnerable zone.
  • Bystander population should have been informed of the risk they were at and trained in evacuation procedures in the vent of an accident as per Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989. But, this has not been done.
  • Siren/Alarm system did not function.

Advocate General and Counsel on behalf of Assistant Solicitor General prayed for time to apprise the Court on the above-stated queries. Further reply was also asked for the following:

  • What is the net worth of LG Polymers as per the provisions of the Companies Act, not as per the book value.
  • After registration of crime, an appointment of investigation/inspection team and also when the Magisterial enquiry was required, why, without appointment of the said panel or permission of Court, Styrene Monomer has been permitted to be transported to South Korea and who is the person responsible for the same?

Hence, Court passed the following interim directions:

  • Premises to be completely seized and no one to be allowed including the Directors of the Company.
  • Committee, if any, appointed wants to inspect premises, they are at liberty but shall put a not on Register maintained at the gate of the Company regarding the said inspection and a note while returning regarding what act done in premises.
  • None of the assets movable or immovable, fixture, machinery and contents shall be allowed to be shifted without the leave of the Court.
  • As stated before, Directors have surrendered their passport and they are in India, however, Court directs that their passports shall not be released without the leave of the Court and they be not allowed to go outside India without leave.
  • It be also apprised whether, during the lockdown period, any permissions were obtained to restart the operations, if not, action taken report be filed.
  • Grievance regarding appointment of various committees by NGT, Centre and State, Centre and State are at liberty to apprise as to which Committee shall fulfil the purpose.

Respondents to file compliance report by 26th May, 2020. Matters to be listed on 28th may, 2020. [Taken UP, Poisonous gas leakage in Visakhapatnam v. State of A.P.; WP(PIL) No. 112 of 2020, decided on 22-05-2020]

COVID 19Hot Off The PressNews

In the light of Order No. 40-3/2020-DM-I(A) of the Government of India dated 15.04.2020 on the subject of functioning of Government establishments during lockdown period on account of pandemic COVID-19, requiring 100% attendance of the officers of level of Deputy Secretary and above and upto 33% attendance of remaining staff, it has been decided as follows:

(1) With effect from 04.05.2020, the Chairperson and Members of the National Green Tribunal, as well all the officers of the National Green Tribunal (Deputy Registrars and above) will attend the Office with 100% attendance, while the remaining staff upto 33% strength shall physically attend the Office as separately notified from time to time. The section heads/incharge of all sections shall prepare rosters of staff required to attend office physically by rotation. The staff members not required to present physically at the Office, shall always remain available on phone and electronic means of communication, and shall attend office physically as and when required.

(2) Considering the health and safety of lawyers / public / litigants / staff, till the situation of Corona improves, judicial work will be conducted by the Benches of NGT only by Video Conferencing, without physical presence/appearance of parties or their counsel in the NGT complex. Only online filing (e-filing) of cases is allowed and no physical filing is permitted. The parties/lawyers may request for listing or adjournment of their cases or make urgent mentioning, by sending an email in advance to judicialngt@nic.in. All communication with NGT qua listing of cases, filing of documents/reports, filing of written submissions / synopsis / audio of oral submissions (if any) etc. shall be done only through this email ID.

(3) The lawyers/litigants desirous of participating personally in VC hearings are required to send request at the above email ID in advance, giving their names, case title, case number, date of hearing, email IDs, mobile numbers, etc. For VC hearings, NGT shall be using “Vidyo” App whereby users can join Vidyo room from their mobile phones/laptops/desktops having adequate internet facility. Vidyo App can be downloaded from link given in website ecourtvc.nic.in as well as Google Play Store (for android) and Apple Store (for iOS). If request for personal hearing through VC is permitted by the Bench, the time and link with one-time password for VC hearing shall be shared with the parties by the Office.

(4) Entry to NGT complex shall be restricted only to its staff. All the safety and precautionary guidelines issued by the Government shall be scrupulously followed by all concerned. The staff shall maintain social distancing norms and protocols, shall wear face masks throughout, shall pass through thermal scanner at entry gate and shall sanitize/wash hands at appropriate intervals. There shall be no crowding at any place / branch in NGT complex and seating of staff shall be arranged accordingly. The NGT complex, including surfaces of furniture and frequently touched objects, shall be sanitized with disinfectants on daily basis.

This shall be subject to further modification if and when further instructions are received from the Government.

National Green Tribunal

[Office Order dt. 28-04-2020]

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]

Amendments to existing lawsLegislation Updates

S.O. 955(E)—The Hon’ble NGT, Principal Bench, New Delhi by its Order dated 13.08.2018 in Original Application No. 489/2014 has directed the Ministry to regulate the wood-based charcoal industries also by amending the Wood-Based Industries (Establishment and Regulation) Guidelines, 2016. In compliance with the orders of the Hon’ble NGT, the Guidelines are amended as under in order to regulate wood-based charcoal industries also:

1. The entry under Para 2(i) (h) of the Guidelines is substituted with the following: ‘Wood-Based Industry’ means any industry which processes wood as its raw material (Saw mills/veneer/plywood or any other form such as sandal, Katha wood, charcoal etc.).

2. The following entry is inserted after Para 2(i) (h):

(i) ‘Charcoal’ means a form of carbon derived from incomplete combustion of wood derived from a tree.

3. The following entry is inserted after Para 8 (iii):-

(iv) All wood-based industries will follow all environmental and other regulations prescribed by the State Pollution Control Board, Central Pollution Control Board and Ministry of Environment, Forest and Climate Change as applicable to these industries under the Environment (Protection) Act, 1986 and other Central and State Acts.

[Dated: 22-02-2019]

Ministry of Environment, Forest and Climate Change

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Principal Bench of NGT at New Delhi comprising of Adarsh Kumar Goel, S.P. Wangdi JJ. and expert member Dr. Nagin Nanda, while considering an application moved by the petitioner, passed directions for implementation of steps to control and stop the release of toxic volatile organic compounds (VOCs) that are released in the atmosphere during transfer of petroleum products at fuel delivery outlets.

The application moved before the Hon’ble Tribunal sought directions for installation of Stage I and Stage II vapor recovery devices at all fuel stations, distribution centers, terminals, railway loading/unloading facilities and airports in Delhi. The applicant averred that petroleum products contain traces of benzene, toluene, and xylene (BTX) that are VOCs and highly toxic in nature. During the transfer of petroleum products at fuel delivery outlets, VOCs turn into vapours from liquid and enter the atmosphere. Exposure to high level of BTX causes neuro-toxic symptoms and persistent exposure to the same may cause injury to the human bone marrow, DNA and immune system damage.

The factum of hazardous impact of VOC was not disputed by the Ministry of Petroleum and Natural Gas and it was stated that the Government of India had already directed public sector oil marketing companies to install Vapour Recovery System (VRS) during fueling of vehicles at all the retail outlets in Delhi and in all high selling retail outlets (selling more than 300 kilo litre per month) in the country.

Having regard to the averments of MoEF&CC, CPCB and Ministry of Petroleum and Natural Gas, the Bench observed that there was no dispute in relation to the need for installing Stage-I and Stage-II vapor recovery devices and the only roadblock was that of implementation. It was noted that the timelines prescribed by CPCB had expired and there was no justification for the long delay in taking requisite steps for protection of the environment and public health.

On the aforesaid observations, the Hon’ble Tribunal directed all oil companies to install Stage-I and Stage-II vapour recovery devices on or before 31-10-2018, failing which Chairman of erring oil companies would be subject to prosecution. Further, it was also directed that a compliance report be filed by the CPCB after taking compliance reports from all the oil companies on or before 15-01-2019. [Aditya N. Prasad v. Union of India, 2018 SCC OnLine NGT 333, decided on 28-09-2018]

 

Case BriefsSupreme Court

Supreme Court: The 2-Judge Bench comprising of Madan B. Lokur and Deepak Gupta, JJ., passed an order by accepting certain exemptions in regard to the “odd-even scheme” that had been implemented in Delhi by the order of NGT.

ASG had placed upon a grievance stating that “there shall be no exemption to any persons, officer and individual and the two-wheelers from the scope of the odd-even scheme.” Further, he submitted that women and two-wheelers may be granted an exemption too.

Therefore, the Supreme Court accepting the submissions of the ASG in regard to the exemptions in certain cases stayed the operation of the direction mentioned in respect of women and two-wheelers. [Government (NCT of Delhi) v. Vardhman Kaushik, 2018 SCC OnLine SC 1543, Order dated 17-09-2018]

Case BriefsHigh Courts

Uttaranchal High Court: A Single Judge Bench comprising of Sudhanshu Dhulia, J. addressed 15 writ petitions seeking to direct the state government to complete its inquiry within a specified date in order to provide relief to the petitioners.

There was an e-auction for allotment of mining lots for river bed material pertaining to different plots and different river beds in the State of Uttarakhand which was consequently cancelled by the state government on a complaint thereby suspecting the petitioners of forming a ‘cartel’ in order to keep the bid as low as possible. Even the earnest money was withheld along with restricting the petitioners to participate in any mining process in the state.

Here the contention of the petitioners was that firstly they cannot be framed on mere conjectures and secondly prices have gone down due to restrictions imposed by the National Green Tribunal and the limited supply of riverbed material.

Here the court resorted to considering the conclusiveness of preliminary inquiry in order to establish the intention of the petitioners. Therefore it stated that it was not sufficient to prove that petitioners formed a cartel. It of the view that as this procedure was adopted to keep transparency in the system the state must not defeat that process.

Hence the Court directed the cyber crime cell to complete its inquiry within a specified time and it made it clear that in case the state government fails to complete its inquiry within that time the petitioners would be at liberty to seek refund of the amount deposited by them as the earnest money, which shall then be refunded. [Balaji Constructions v. State of Uttarakhand,2018 SCC OnLine Utt 729, order dated 06-08-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of AK Sikri and Ashok Bhushan, JJ., had modified one of the directions by NGT concerning the conversion of vehicles plying at the Indira Gandhi International Airport to CNG.

National Green Tribunal along with several directions had also issued a direction stating that “All the coaches/buses and other vehicles plying at the airport should be CNG and must comply with the prescribed emission standards. Non-CNG buses/coaches or other vehicles plying at the airport should be converted to CNG.”

The grievance submitted by the appellants was that the other vehicles apart from the buses and coaches were also directed to be converted into CNG mode.  One of the points in this regard was that there are a few specialized vehicles which cannot be converted into CNG mode at all.

Therefore, the Supreme Court bench decided in this regard that the grievance was justified and the direction issued by NGT was deemed to be modified accordingly. [Narangs International Hotels (P) Ltd. v. Society for Protection of Culture Heritage Environment Traditions and Promotions of National Awareness,2018 SCC OnLine SC 998, Order dated 06-08-2018]

Hot Off The PressNews

National Green Tribunal (NGT): The Bench comprising of AK Goel Chairperson, Jawad Rahim, JM Raghuvendra S. Rathore, JM and Dr Satyawan Singh Garbyal, Expert Member directed by an order that the applicant/ appellant shall before approaching the tribunal with grievance approach the authorities concerned.

In an application filed, the tribunal ordered that the applicant should state the reason and specific provisions of a statute violated in the application/appeal. One of the prominent directions issued was that the person must normally approach the authorities concerned by giving them a time of 15 days to respond. Further, when the person approaches the tribunal the response received should be attached in the application before the tribunal.

The above-stated order was issued in regard to provide quicker remedy to the individuals. The direction is to be followed till an exception is made out from 01-08-2018. [Shivpal Bhagat v. Union of India, OA No. 104 of 2018, dated 19-07-2018]

Hot Off The PressNews

National Green Tribunal (NGT): Due to lack of experts and judicial members, the NGT is planning to conduct hearings through video-conferencing to deal with the pendency of cases in its regional benches.

NGT is currently functioning with less than one-third of its sanctioned strength of 20 officials besides the chairperson. It has been reported that due to the non-availability of the judicial members and experts the cases are being transferred to the principal bench in Delhi, which eventually is creating a hassle for the petitioners in terms of financial as well as the physical burden.

Therefore, in order to deal with present issue NGT is planning to devise an interim mechanism to get rid of the pendency by holding hearings through video-conferencing.

[Source: PTI]

Hot Off The PressNews

National Green Tribunal: In a relief to public sector oil companies, the National Green Tribunal has allowed registration of new diesel vehicles conforming to BS-IV norms to be used for transporting petrol or petroleum products. The order came after the oil companies told the Tribunal that they do not possess any diesel vehicle which is more than 10 years old for transporting petroleum products. The Commissioner of Transport Department of Delhi government has been directed to register the vehicles, subject to certain conditions, being –

· The new vehicles that are sought to be registered now should be BS-IV compliant.

· The said vehicle should be duly maintained and used only for exclusive purpose of carrying petroleum products and no other use.

· The applicants shall file an affidavit before the tribunal as well as before RTO that they do not possess or engage any diesel vehicle/truck which is more than 10-year-old for the purpose of transporting fuel granted by oil companies.

· Also details should be furnished of any other vehicles owned by the applicant in the form of affidavit.

The green panel further directed the department to “dismantle” old vehicles which are over 10 years of age and ordered that new vehicles should be fitted with Global Positioning Systems. The direction came on a plea filed by oil companies contending that the NGT had banned the registration of new diesel vehicles as well as re-registration of such vehicles after 10 years.

[Source: The Hindu BusinessLine]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal: While dealing with the issue relating to eligibility for appointment of Chairman/ Member Secretary of State Pollution Control Board, the Tribunal held that the Pollution Boards constituted by the State Governments/ Union Territories shall be strictly in accordance to Section 4 of the Water Act and Section 5 of the Air Act.

In the present case, a challenge has been made to the constitution of State Pollution Control Board mainly on the ground that person who do not qualify in terms of Section 4 of the Water (Prevention and Control) of Pollution Act, 1974 and Section 5 of the Air (Prevention and Control) of Pollution Act, 1981 are being appointed as Chairman/Member Secretary of the Board. The case of the applicant is that there is no infrastructure of professional and technical officer in the Environment department of the State Government and State Board. Manpower in the State Board is almost same as in 2000 and is highly insufficient and in-competent to cope up with thousands of industries and development centres which have now been established. Further the applicant stated that rehabilitation and rebuilding of infrastructure in the State is being planned and executed by IAS/IFS officers having administrative/Forest background only. The knowledge and practical experience of IFS officers in implementation of Forest Conservation/Wildlife Protect/Bio-diversity Act, which is only 10% of total Environment, cannot fulfil the requirement of professional knowledge and expertise of environment as required under Water and Air Protection Act and the Rules made thereunder. According to the applicant, the State Government violated the provisions of Water Act, 1974 and Air Act, 1981 and the Principal Secretary, Forest and Environment, Government of Uttarakhand had illegally nominated himself as Chairman and 10 others, by their designation, as Members of the State Pollution Control Board. The appointment/nominations of Chairman and Member Secretary should have been of the persons who were having special knowledge and practical experience in environment and that of other members as per the relevant provision. It should not have been on the basis of their designation, by virtue of service in the State Government

The Tribunal after perusal of the argument advanced issued certain guidelines to the State Governments/Union Territories in order to maintain the smooth functioning of State Pollution Control Boards,

  • The State Governments/ Union Territories shall constitute the Pollution Control Boards strictly in accordance to Section 4 of the Water Act and Section 5 of the Air Act, and the eligibility criteria as aforesaid, for appointment of Chairman/Member Secretary of the Board.
  • The State Government is to ensure that the person manning the post of Chairman/Member Secretary of State Pollution Control Board are competent and eligible with requisite knowledge or practical experience in the field of environment protection and pollution control, with experience of management.
  • The appointment as a, Chairman or Member Secretary, should be of persons who are having special knowledge or practical experience or qualification in environment protection studies and not by virtue of their designation in service of the State Government like Chief Secretary, Principal Secretary, Environment Secretary or even Politician like former Speaker, Minister, M.L.A, all literary persons and non-technical persons.
  • The State Government are to notify the rules under Water and Air Act expeditiously specifying the qualifications and experiences required for the post of Chairman/ Member Secretary. The post of Chairman/ Member Secretary should be advertised and thrown open for all candidates irrespective of the fact whether they are in the Government, Academia or in private sector, so as to attract the best talent to man the said post.
  • The nominated Chairman/Member Secretary should have a fixed term of office which should not be extended for more than one term. Such persons should not hold office in the Board in accordance to their tenure in State Government.
  • Once a person having requisite eligibility is appointed as Chairman/Member Secretary in the State Pollution Control Board, he is to continue for full tenure and the same is not to be curtailed by removal or by repatriated before its completion, unless there are charges of misconduct or cogent reasons which are to be placed on record. Completion of tenure as Chairman/ Member Secretary of the Board, not only gives security of service to the persons who are appointed but it is essential for efficiency of work and smooth functioning of the Board. A tenure unaffected by political and bureaucratic interference would be extremely important for the officials to function fearlessly and in accordance to the mandate of the legislation as given under relevant Environmental Protection Laws like Water Act, Air Act etc.
  • The State Government is to develop the infrastructure in the State Board by professional and technical officers who are efficient and competent to cope-up with increase of industries and development centres. They should ensure adequate manpower for the purpose of execution of provision of the relevant law.
  • The State Government should have latest equipped laboratories for analysis of samples of trade effluents etc.
  • The State Government is to ensure strict compliance of Section 8 of Water Act and Section 10 of the Air Act so that a meeting of the State Pollution Control Boards are held regularly and in accordance with law.
  • The State Governments and all concerned Authorities shall act in accordance with the directions contained in this judgement particularly paragraph 148 of the Judgment.
  • The State Government and all competent Authorities shall proceed to make appointment/ nomination of the Members of the Board as per categorisation and subject to the limitations of number provided under Section 4 and 5 of the Act of 1974 and 1981 respectively as expeditiously as possible, in any case not later than three months from the date of pronouncement of this Judgment.

[Rajendra Singh Bhandari v. State of Uttarakhand, 2016 SCC OnLine NGT 456, decided on 24th August, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal : While observing that, “no party from any country in the world has the right/privilege to sail an unseaworthy ship to the Contiguous and Exclusive Economic Zone of India and in any event to dump the same in such waters, causing marine pollution, damage or degradation thereof”, CIC imposed an environmental compensation of Rs 100 crore upon a Panama-based shipping company and its two Qatar-based sister concerns for causing an oil spill when a cargo vessel sank off the Mumbai coast in Year 2011. The three companies, Republic of Panama’s Delta Shipping Marine Services SA, Qatar-based Delta Navigation WLL and Delta Group International, were fined for pollution caused to the marine environment due to the oil spill. Gujarat-based Adani Enterprises Ltd. was also asked to pay Rs five crore as environmental compensation for dumping 60054 MT Coal in the seabed and causing pollution of marine environment. Earlier, the ship, which was sailing from Indonesia to Dahej in Gujarat, sank 20 nautical miles off the South Mumbai coast in the Arabian Sea on August 4, 2011. The vessel was owned by Delta Shipping Marine Services SA while Delta Navigation WLL and Delta Group International were responsible for its voyage. The ship was also carrying more than 60,000 metric tonnes of coal for Adani Enterprises Ltd. thermal power plant in Gujarat besides containing 290 tonnes of fuel oil and 50 tonnes of diesel. In an application filed by an environment activist before NGT, it was alleged that as a result of the oil spill, there has been damage to mangroves and marine ecology of the Bombay coast. While hearing the application, NGT pondered upon the question of public importance and significance of environmental jurisprudence, in relation to pollution caused by sinking of ship and oil spill in the Territorial Water, Contiguous Zone and Exclusive Economic Zone of the country (India) and consequences and liabilities arising there from. After perusing the relevant material on record, NGT noted that, “The reports on record clearly show that the documents in favour of the ship were issued in a biased manner and the ship was not seaworthy, right from the inception of its voyage.” The Tribunal also noted that there was serious marine pollution caused by the oil spill and continuous pollution will result from the ship and its cargo. While holding the companies guilty, NGT held that it was a clear case of negligence and sinking of a ship cannot be caused by “accident simpliciter”. NGT added that in this case element of mens rea can be traced from the unfolding of the events that finally led to the sinking of the ship and imposed fine upon the companies. [Samir Mehta v. Union of India, 2014 SCC OnLine NGT 927, decided on August 23, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): NGT has imposed heavy penalty upon thirteen industries located in Ullal Taluk, Dakshina Kannada District, Mangaluru, for having operated the fish meal and fish oil production units without taking adequate pollution control measures. A penalty of Rs 8 lakhs each was imposed upon five fish meal and fish oil manufacturing units where as Rs 5 lakhs each were slapped upon the rest eight fish meal and fish oil manufacturing units under the “Polluter Pays Principle”. The local residents who filed the application before NGT alleged that the respondent industries which were located in an ecologically fragile area emit Sox, Nox, CO, dimethylamine, triethylamine and hydrogen sulphide molecules and particulars from boilers, which were so extreme that it remains in the cloths even after several washes. Malodour comes from the raw material in the manufacturing process i.e., fish and from the wastewater sludge. The sludge generated from various stages of production has high level of organic matter contains traces of ammonia, phosphorous, nitrogen, dimethylamine and triethylamine resulting in change in aquatic environment by disrupting natural movement and migration of aquatic populations. A number of chemical compounds were formed during the bacteriological decomposition of the fish before it is cooked, which are volatile and if discharged without treatment they cause pollution to the marine environment.  After perusal of material on record, NGT observed that inspection reports of officials of Karnataka State Pollution Control Board (KSPCB) showed that Common Effluent Treatment Plant (CETP) of the Units suffered from various shortcomings and was not properly maintained. Even after a number of notices from KSPCB, defects of CETP were not rectified. “The respondent fish meal and fish oil manufacturing units indulged in negligence, violated the pollution control norms thereby causing pollution to the adjacent estuary waters by discharging untreated effluents and also caused nuisance and health hazard to the nearby residents by emanating malodour and stench. Inspite of repeated notices and directions given by various authorities they did not mend their ways and continued to operate the units in utter disregard of the environmental concerns. It is pertinent to note that the KSPCB itself on several occasions found that the respondent industries have failed to establish the CETP inspite of several directions issued from time to time. And even after installation of CETP it was not properly maintained. We, therefore, feel that it is a fit case to invoke the ‘Polluter pays’ principle against the respondents,” NGT noted in its order and slapped fine upon the thirteen fish meal and fish oil production units. NGT also imposed an amount of Rupees Twenty Five lakhs upon Fish meal and Fish oil Manufacturers Association for utter negligence and violation of standards in operating the CETP thereby leading to releasing of untreated effluents into the adjacent sea and causing pollution inspite of giving a number of opportunities to rectify the CETP. While concluding the judgment, NGT directed KSPCB to continue to monitor the units and do not allow them to operate unless the CETP is made to function by meeting all the required standards and all the individual units install the deodorisers and evaporators and make them fully functional. [Mohd. Kabir v. Union of India, Application No. 261 of 2014 (SZ), decided on July 8, 2016]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Circuit Bench of NGT at Kochi has directed that no diesel vehicle aged more than 10 years shall be allowed to ply in major cities of Kerala like Thiruvananthapuram, Kollam, Kochi, Thrissur, Kozhikode and Kannur. In addition, the tribunal also temporarily banned registration of new diesel vehicles over 2,000CC and only vehicles for public transport and those to be used by local authorities have been exempted in the order. NGT issued the said interim order while hearing a petition filed by Lawyers’ Environmental Awareness Forum. “We direct that all the diesel vehicles whether light or heavy which are more than 10 years shall not be permitted to ply on the roads in the major cities like Thiruvananthapuram, Kollam, Kochi, Thrissur, Kozhikode and Kannur,” NGT noted. The Tribunal further added that upon expiry of 30 days from May 23, 2016, i.e. the date of issuance of the said interim order, if any vehicle is found to be violating this direction, it shall pay Rs. 5000 as environmental compensation and this will be collected by traffic police or pollution control board. “The State Pollution Control Board shall maintain a separate account in this behalf. The Fund so collected shall be spent only for betterment of environment in these cities (where the ban would be in force),” the Tribunal directed. In its order, NGT also referred to orders passed by its larger bench in Vardhman Kaushik v. Union of India, 2014 SCC OnLine NGT 2365, by which all vehicles aged over 15 years were banned from the roads in Delhi. While concluding the order, NGT directed the State of Kerala to inform the availability of CNG gas for running of vehicles in the entire State. [Lawyers’ Environmental Awareness Forum v. State of Kerala, 2016 SCC OnLine NGT 163, dated: May 23, 2016]