NGT

Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Raghvendra Singh Chauhan, CJ, and Alok Kumar Verma, J., issued directions in relation to a writ filed by Mr Rajiv Bhartari, the Principal Chief Conservator of Forests, Department of Forest.

The Bhartari informed the Court that annually from March till June, the State is prone to forest fires and so far, 52 incidents had occurred ranging from District Nainital to District Champawat to District Udham Singh Nagar. Between October, 2020 till March, 2021, there have been about 852 incidents of forest fires, which have adversely affected 1012 hectares of land. According to him, the Forest Department has a large number of vacancies. The sanctioned strength of Forest Guards is 3650, out of which there is a vacancy of 2098. Thus, there is a vacancy of 65% of the staff. Similarly, there is  82% vacancies in the cadre of Assistant Conservators of Forest. Mr Bhartari further informed that Department had formulated a “Crisis Management Plan”. And despite, the best efforts of the Forest Department to implement the same, due to shortage of funds and due to shortage of staff, the Forest Department was not in a position to implement the plan in toto.

Mr Dushyant Mainali, the proxy counsel for Mr Ankit Shah, the counsel for the petitioner, submitted that despite the stay granted by the Hon’ble Supreme Court against the said judgment, in the case of Rajiv Dutta v. Union of India, 2017 SCC OnLine NGT 30, the National Green Tribunal had dealt with the phenomena of forest fires in the State of Uttarakhand and issued certain guidelines.

The Court after considering the arguments directed that the guidelines issued by the NGT in Rajiv Dutta v. Union of India, 2017 SCC OnLine NGT 30 should be implemented as expeditiously as possible. The Court further directed,

“(1) The State should ensure that sufficient fund is given to the Forest Department so that the vacancies can be filled up. Therefore, the State, especially the Forest Department, should ensure that sixty-five percent vacancies in the cadre of Forest Guard are eliminated, and all the vacancies are filled-up within a period of six months. Moreover, the eighty-two percent vacancies that exist in the cadre of Assistant Conservator of Forest should equally be filled-up as expeditiously as possible, preferably within a period of six months. Likewise, the vacancies existing in the cadre of Ranger should be filledup as expeditiously as possible, preferably within a period of six months. Moreover, the Forest Department should have the necessary equipments and the physical infrastructure. For, until and unless sufficient manpower and physical infrastructure are not provided to the Forest Department, it will be extremely difficult, if not impossible, for the Forest Department, to carry out its functions.”

[In Re, In the matter of, “Protection of Forest Area, Forest Wealth and Wild Life due to devastation from the extensive forest fires in the State of Uttarakhand.” v. State of Uttarakhand, Writ Petition (PIL) No. 68 OF 2018, decided on 07-04-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

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

Question for consideration

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

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

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

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

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

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

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

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

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

Application was disposed of in view of the above-stated reasons. [Sandeep Kharb v. Ministry of Environment, Forest and Climate Change; OA No. 150 of 2019, decided on 07-04-2021]

Advocates before the Court:

Applicant: Mr. Pradeep Dahiya, Advocate for Applicant

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

Mr. Pradeep Misra, Advocate for UPPCB

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

Case BriefsTribunals/Commissions/Regulatory Bodies

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

Proceedings based on News Report in Times of India

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

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

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

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

Matter considered in the past

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

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

Analysis & Decision

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

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

Polluter Pays Principle

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

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

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

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

Advocates before the tribunal:

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

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Full Bench of Justice Adarsh Kumar Goel (Chairperson) and Justice Sheo Kumar Singh (Judicial Member) and Dr Nagin Nanda (Expert Member) expressed that:

Conduct of functions must not disturb other citizens right to peaceful and clean environment.

The instant Order was pursuant to the subject of compliance of environmental norms by restaurants/hotels/motels/banquets, etc. in terms of earlier orders of Tribunals.

Vide the Order dated 02-11-2018, Tribunal considered grievance against the violation of environmental norms, including solid waste management, discharge of effluents, illegal ground water extraction, ground water contamination, emission by illegally operating diesel generators, absence of statutory consents under the Water (Prevention and Control of Pollution) Act, 1974 (‘Water Act’), the Air (Prevention and Control of Pollution) Act, 1981 (‘Air Act’) and violation of conditions of consents where such consents are granted, by the restaurants/hotels /motels/banquets in Mahipalpur, Rajokri areas in Delhi. The Tribunal also considered the issue of absence of rainwater harvesting, ground water recharge system, excess noise pollution, illegal parking and encroachments.

Tribunal found violations and directed remedial action.

Mechanism/Guidelines for Control of Pollution and Enforcement of Environment Norms at Individual Establishments and the Area/ Cluster of Restaurants/ Hotels/ Motels/ Banquets etc.:

  1. a)  Individual units to provide necessary facilities for control of air, water & noise pollution, solid waste management, etc as enumerated in the previous sections.
  2. b)  Individual units to take necessary approvals from the concerned authorities as listed below:
  •  Consent to Establish under Air/Water Act
  •  Consent to operate under Air/Water Act
  •  Permission for concerned Authorities in accordance with provisions of Noise Rules
  •  Permission for Ground Water Extraction from concerned Authorities , if required
  •  Building Plan Approval from concerned Authorities
  •  Fire Safety Certificate/NoC from concerned Authorities
  1. c) Local Authorities to ensure provision of adequate common facilities for water pollution, solid waste management, parking etc
  2. d) The State Board to have robust monitoring mechanism to evaluate compliance with norms of such units atleast twice a year. As per NGT Directions, SPCBs/PCCs are required to submit compliance report to CPCB

Bench stated that the recommendations in the report of the CPCB need to be duly implemented by all the States/UTs by adopting the guidelines for control of pollution in marriage halls, banquet halls, party venues etc. along with consent management system, as already directed.

Further, the Tribunal added that ETPs needs to be installed by all the big units, not connected to the sewer lines, apart from ensuring compliance of rainwater harvesting systems, adequate safeguards in operating the kitchen need to be adopted, composting facilities, control of noise levels and providing parking space.

In case the above is not followed, no consent shall be given or renewal even in respect of the establishments already setup.

Bench also expressed that the Consent conditions must require the owner/manager of establishment informing the organizer/user in writing in advance about the conditions applicable for ensuring compliance.

 In view of the above, application was disposed of. [Westend Green farms Society v. Union of India,  2021 SCC OnLine NGT 3, decided on 04-02-2021]

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

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

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

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

Also Read:

Section 14 of the NGT Act:

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

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

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

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

Section 15 of the NGT Act:

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

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

(b) for restitution of property damaged;

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

as the Tribunal may think fit.

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

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

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

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

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

Case BriefsTribunals/Commissions/Regulatory Bodies

Rafting per se does not cause any serious pollution of river or environment.

National Green Tribunal (NGT): The Bench of Justice Swatanter Kumar (Chairperson) and M.S. Nambiar (Judicial Member), Dr D.K. Agarwal (Expert Member) and Prof. A.R. Yousuf (Expert Member), allows rafting at Rishikesh but bans camping activity.

Reason for filing the present application

Being aggrieved by the haphazard and unregulated licensing of the river rafting camps operating in river Ganga from Shivpuri to Rishikesh on one hand which is a serious source of pollution of pristine river Ganga on one hand and encroachment and degrading of various areas, on the other hand, the instant application was filed.

The applicant organization has been raising various issues with regard to environmental protection across the country.

Rafting and Camping

In northern India, rafting is commonly exercised on the river Ganges near Rishikesh and the Beas River in Himachal Pradesh. Recent times have witnessed that the said area has been denoted as eco-tourism zone namely Kaudiyala-Tapovan eco-tourism zone where various activities besides rafting and camping have been permitted.

Activities of camping and rafting in a very huge number has caused excessive pressure on the river. On the said sites, either there are no toilet facilities, making people defecate in the open or where they exist they are in the nature of pit disposal.

Causes of Pollution 

During monsoon, the discharge remains to flow into the river, thereby causing pollution and interfering in the river eco-system. The tourists and rafters also throw polythene, wrappers and various kinds of bottles on the sites and on the river bed which ultimately flow into the river. Ganga is also polluted because of high use of detergents, soaps and shampoo.

State Government’s approach is violative of the doctrine of public trust as enunciated by the Supreme Court in the decision of M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388 and Centre for Environment Law v. Union of India, (2013) 8 SCC 234.

  • Trees have been cut in the process of encroaching upon the forest area for the purpose of campsites and beach camps.
  • Noise and Air Pollution: Rafting campsites are located upstream and rafters are taken to the campsite in diesel vehicles, creating noise and air pollution.
  • Alcohol along with the food is served by the owners, the leftover of which flows into the river causing pollution.
  • Wildlife is being affected due to the above-stated camps and the increase in man-animal conflict.

Hence, on the applicant’s behalf, it was submitted that since rafting camps are a ‘non-forest activity’, therefore it cannot be carried on without clearance from the competent authority under the Forest (Conservation) Act, 1980.

Mushrooming of rafting camps cannot be termed as a sustainable development activity or a permissible eco-tourism activity.

Analysis and Decision

Following questions fall for determination of the Tribunal:

  1. Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?
  2. Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires approval of the Central Government as contemplated in terms of Section 2 of the Conservation Act?
  3. Whether in the facts and circumstances of the present case, permitting the establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of sub-section (iii) of Section 2 of the Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?
  4. Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) of sub-section 2 of Section 8 of Uttarakhand Tourism Development Board Act, 2001 (for short ‘Act of 2001’) when the field was already covered under the Central legislation, i.e., the Conservation Act?
  5. Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28th August, 1998 issued by MoEF is liable to be quashed?
  6. Whether camping site is a purely commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on the environment in mind and should be barred?
  7. If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?
  8. What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?
  9. What directions should be issued by the Tribunal?

Discussion

Whether the application is barred by limitation in terms of proviso to Section 14 of the National Green Tribunal Act, 2010?

Under Section 14 of the NGT Act, the Tribunal has the jurisdiction to entertain and decide all civil cases where substantial question arises to environment (including enforcement of any legal right relating to environment) is involved and such question arising out of the implementation of the enactments specified in Schedule-I of the NGT Act.

The ‘cause of action first arose’ would have to be understood in reference to continuing cause of action, where the cause of action is recurring and is distinct or is a new cause of action.

Rafting and camping is an activity which has been carried on for years now. Rules were framed in 2014 by the State of Uttarakhand under which permission and licenses for rafting and camping respectively are to be granted.

According to the affidavit filed on behalf of the State, it is an annual feature and permission/license are granted from September to June every year. Thus, every year it is a fresh cause of action.

NGT’s larger bench has already stated that when an application is based on recurring cause of action then fresh cause of action would not be hit by the language of Section 14 of the NGT Act and each fresh event would give a fresh acsue of action and consequently the period of limitation of 6 months.

Applicant claims and has rightly invoked Precautionary Principle in terms of Section 20 of the NGT Act. The Precautionary Principle can be safely applied to protect and prevent the environment and ecology.

Tribunal stated that the issue in the present application was in regard to proper regulation of rafting and camping activity to prevent damage, degradation and pollution being caused in relation to the forest area, river bank and river Ganga. Hence, such an action would not be hit by limitation.

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Whether setting up of temporary camps, particularly in the declared forest area amounts to non-forest activity and requires or not approval of the Centre as contemplated in terms of Section 2 of the Conservation Act?

Whether in the facts and circumstances of the present case, permitting establishment of camps for a major part of the year and year after year amounts to temporary assignment by way of lease or otherwise to a private person of any forest land or portion thereof, in terms of Section 2(iii)  of Conservation Act attracts restriction contemplated under Section 2 of the Conservation Act?

In the case of Lafarge Umiam Mining (P). Ltd. v. Union of India, (2011) 7 SCC 338 while referring to Section 2 of the Conservation Act the Supreme Court held that this is how the concept of prior approval from the Central Government comes into picture and thus prior determination of what constitute forest land is required to be done.

The State of Uttarakhand had issued permissions to carry on the non-forest activity in the reserved forest area under the provisions of relevant laws. It had also made a reference to MoEF vide its letter dated 31st July, 1998. This letter was responded by MoEF vide letter dated 24th August, 1998.

MoÉF expressed the view that camps on sandy stretch of river banks for rafting does not fall under the provision of Conservation Act and it is basically an eco tourism activity.

MoEF vide its letter dated 7-10-2014 issued guidelines for diversion of forest land for non-forest purposes or execution of temporary work in the forest land. Vide this letter it clarified that the work which does not involve any tree cutting, is a temporary work and the approval as contemplated under Section 2 of the Conservation Act is not required.

Till 1998 the view of MoEF was that camping should not be permitted in the sandy banks of the river and the forest area. However, the letter dated 28th August, 1998 made some variations.

Tribunal stated that,

“…provisions of Section 2 of the Conservation Act, therefore, must have precedence over any other law for the time being in force in the State of Uttarakhand.”

In the present case, we are primarily concerned with the interpretation of Section 2(ii) and (iii) read with explanation to the section.

Bench observed that ‘Camping Activity’ is an activity which has impacts on environment and ecology and bio-diversity of the river. There are allegations and even records to suggest that number of camping areas have been found to be offending the conditions imposed by the State Government. Cases of breach had been registered against them and in a case even fire-arms were found to be in possession of the visitors coming to these camps.

Further, there are permanent, semi-permanent and temporary structures raised and large scale tenting is done in the river bed. This activity from its nature, substance and actualities extending on the site clearly show that it is a non-forest activity for a non-forest purpose. 

Once it is held that the activity of camping on the forest land or any portion thereof is a non-forest activity and for a non-forest purpose, the provisions of Section 2(ii) of the Conservation Act would be applicable and it would be expected of the State Government to issue permission/order in terms thereof only upon taking approval of the Central Government.

Hence the contention that the said activity is not a non-forest activity could not be accepted.

Whether setting up of rafting camps along the beach of river Ganga and its tributaries qualifies as breaking up of the forest as comprehended under Section 2(ii) of the Conservation Act or not?

The term ‘breaking up’ has to be understood with the object of the Conservation Act in mind.

The instant case cannot be compared to the case of S Jayachandran, Joint Secretary, T.N Greens Movement (supra) rather if the activity of camping is carried on for ten months every year it has certain degree of permanency as understood and digging of the area is carried on. Thus, even according to that judgment, it would be breaking up of the forest area.

Furthermore, this is an act being carried on by the private respondents with the permission of the State and is certainly not an act/purpose of reforestation. Thus, we are unable to accept this contention of the respondent.

Hence for the issues mentioned above, tribunal held that the cases of camping activities in the reserved forest areas are activities which are for non-forest purpose or are non-forest activity in the forest area. These cases would attract the provisions of Section 2(ii) and (iii) of the Conservation Act.

It is obligatory upon the State of Uttarakhand to seek approval at least as a matter of scheme from MoEF and then issue orders/permits in terms of Section 2 of the Forest Conservation Act.

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  • Whether it was permissible for the State of Uttarakhand to cover regulation of forests under the Rules of 2014 which were formed under clause (a) and (b) Section 8(2) of Uttarakhand Tourism Development Board Act, 2001 when the field was already covered under the Central legislation, i.e., the Conservation Act?
  • Whether eco-tourism in the forest area would squarely fall within the ambit and scope of the provisions of the Conservation Act and the letter dated 28-08-1998 issued by MoEF is liable to be quashed?

Ecotourism is about uniting conservation communities and sustainable travel. It is defined as responsible travel to natural areas that conserves the environment and improves the welfare of the local people.

Examples of negative environmental impacts of tourism to the protected natural areas have been listed as: overcrowding, environmental stress, trail erosion, deterioration of vegetation, noise pollution, contamination of air, water and land, forest fires, wildlife mortality, health hazard, habitat destruction, deforestation, erosion, ecological changes, behavioral changes of animals, groundwater pollution, scarring of landscape, etc.

The provision which empowers the State Government under the Act of 2001 to grant permission for camping activity in the forest area which is a non-forest activity would be ultra vires the provisions of the Conservation Act.

Tribunal in view of the above stated issues held that the MoEF letter dated 28-08-1998 is liable to be quashed the provisions or rules which deal with the implementation and proposal to grant permits for carrying on of camping activity in the forest area are concerned, they are in conflict with the provision of Section 2 of the Conservation Act and hence are ultra virus and cannot be implemented. It is obligatory upon the State of Uttarakhand at best as a matter of policy to seek prior approval of the Central Government before issuance of any permit for said camping activity.

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What is the relevancy for determining the conduct of the State Government, private parties and the incidents of violation reported before the Tribunal?

Rapid Impact Assessment Report was not found worthy of acceptance by the State of Uttarakhand according to the Inter- Departmental Meeting of the State of Uttarakhand. The said meeting was held as a one day affair in which the team had gone in the river through the motor boat which was not permissible and they had no fair opportunity to examine the sites and offer fair comments. The said contention was not accepted by the tribunal.

The above-stated were verifiable facts and whether the State Government wanted to accept the report or not was a matter, exclusively in the domain of the State Government. But to treat it as an irrelevant document was certainly a mistake, the State Government ought to have considered the report objectively and taken its decision while granting permissions so as to ensure that there was no degradation of environment, biodiversity, ecosystem and particularly the forest area.

Hence, it was observed that the conduct of the State and the private parties are of relevancy in determining the main issue. The Rapid Assessment Report would provide an insight into the working of these camp sites. Undisputedly, there are violations committed by the management as well as the guests at the camp sites.

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  • Whether camping site is a pure commercial activity and cannot be permitted in the forest land or on the banks of river Ganga, keeping its impact on environment in mind and should be barred?
  • If question no. 6 is answered in the negative, what should be the regulatory regime governing carrying on of such rafting and camping activities?

It is clear that this eco-tourism activity is completely a commercial activity intended to provide financial benefit to the State and provide employment to the people of the area.

It is true that rafting does not have any adverse impacts on the environment, ecology and river per se but carrying on of camping activity in the forest area does have substantial impacts.

Bench observed that despite the fact that eco-tourism is a commercial activity still it could be permitted, but subject to a strict regulatory regime and its enforcement without default.

Responsibility lies upon the State to protect its environment, forest and rivers.

Camping activity does cause contamination of river and ground water particularly when the activity is not carried on strictly in terms of the regulatory regime in force.

Further it was stated that the camping activity cannot be permitted as a primary activity as it has been there for continued period of 5 years. It is a matter of common knowledge that a person who wish to make investment for a period of 5 years would be having some reluctance not to raise structure of atleast some permanence to give greater comfort, convenience and service to its visitors, though at the cost of adverse impacts upon environment, ecology, river and wildlife.

Thus, it is absolutely essential that a proper stringent Regulatory Regime is placed on record so that such activity can be permitted to continue longer.

Tribunal also noted that the Ganga river from Gaumukh to Rishikesh which few years back was a river of pristine and without any pollution today, because of various factors, of which camping is one, has altered water quality, therefore it is absolutely necessary that a High Powered Committee is constituted.

There has to be very serious supervision with physical inspections at regular intervals by team of high officers of the Forest Department of Uttarakhand and Uttarakhand Environment Protection and Pollution Control Board.

there would be no camping or camping site in the mid of the river or river bed and anywhere within the area which is less than 100 meters measured from the middle of the river upto 2 km beyond boundary of the Rishikesh upstream and not less than 200 meters measured from middle of the river there onwards till boundary of Haridwar downstream.

The concept of ‘Back to Nature’ ought not to be used for developing revenue at the cost of Environment and Ecology.

Directions:

Tribunal passed the following directions in view of the above discussion:

  • No camping activity shall be carried out in the entire belt of Kaudiyala to Rishikesh and the Government would abide by its statement made before the Tribunal on 31st March, 2015. Rafting activity is permitted to be carried with immediate effect.
  • A committee of officers is constituted not below te rand of a Joint Secretary from the Ministry of Environment and Forests and along with a specialist in this from the Ministry.
  • The Rapid Impact Assessment Report shall be treated as a relevant document and the Committee would conduct or get conducted a further survey to satisfy itself.
  • Committee shall consider all aspects of Environment, Wildlife, River and Biodiversity while preparing the relevant regulatory regime.
  • Committee shall give recommendation for all preventive and curative measures and steps that should be taken for ensuring least disturbance to wildlife and least impact on the environment and ecology.
  • After preparation of this report which should be prepared within 3 weeks from the pronouncement of this Judgement, the State of Uttarakhand through Secretary, Forests would submit a Comprehensive Management Plan cum proposal for approval to MoEF. MoEF would consider the same in accordance with law and accord its approval in terms of Section 2 of the Forest Conservation Act.
  • Committee shall ensure that it not only identifies the sites which can be appropriately used for camping activity but also the manner and methodology in which such sites should be put to use for carrying on of these activities.
  • After grant of approval, the State of Uttarakhand shall issue an order under Section 2 of the Forest Conservation Act and give permits in terms of its policy.
  • In terms of revenue and technical aspects, the State is free to take its decisions.
  • Tribunal further directs that if the Committee is of the opinion that rafting stations and number of rafting shafts to be permitted should be more than camp sites, it may so recommend but then, those rafting stations shall be used for very limited purposes of picking up and dropping the visitors without any other infrastructure.
  • local persons should be provided with maximum chances of employment or other financial gains resulting from this Eco-Tourism.
  • Complete prohibition on use of any plastic in the entire belt covered under the present judgement.
  • It shall be obligatory upon every person to whom permit/license for camping is granted by the State to collect the Municipal Solid Waste or all other wastes from the camping site at its own cost and ensure their transport to the identified sites for dumping.
  • No structure of any kind would be permitted to be raised, temporary, semi-permanent or permanent. We make it clear that making of the cemented platforms or bricked walls would not be permitted within the limits aforestated.
  • Committee also has to make this Report in relation to source, quantum of Water and source of Power needed keeping in view the camping activity.

[Social Action for Forest and Environment (Safe) v. Union of India,  2015 SCC OnLine NGT 843, decided on 10-12-2015]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Full Bench of Justice Adarsh Kumar Goel (Chairperson) and Sheo Kumar Singh (Judicial Member), Satyawan Singh Garbyal and Dr Nagin Nanda (Expert Members) addressed a matter wherein violation of Air and Water Act has been stated and ground for polluted environment is the lack of funds with the local body.

In the present application, the grievance was with regard to the violation of the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 in a village in Himachal Pradesh on account of failure to handle waste which is being burnt causing air pollution, resulting in diseases, loss of livestock and contributing to forest fires and loss of wildlife.

Increase in monkeys, feral dogs and scavengers namely crows, vultures, etc. have also been noticed. Further, the Dumpsite in hilly terrain has been overflowing and contaminating water body, which is a source of irrigation.

The above-stated deficiencies have been pointed by relying upon the photographs and letters addressed to the authorities.

Deputy Commission and the Himachal Pradesh State Pollution Control Board, both had sought a report vide its order dated 14-01-2020.

In the report filed n 13-11-2020 following was stated:

As per the said report, the Joint Inspection Committee had directed the Municipal Council, Hamirpur:- (i) to join the corners of RCC retaining wall with the hill ~ide to avoid spillage of Solid Waste (ii) to provide proper fencing to avoid entry of stray animals inside the facility (iii) construct storm drain of adequate size to avoid entry of storm water/rain water and (iv) to ensure that no fire incident/forest fire take place in the solid waste processing facility. Being a nodal agency, State Board also issued directions vide office letter dated 14/02/2020 to Municipal Council, Hamirpur to comply with the recommendations of the Joint Inspection committee.

It is further submitted that the Joint Inspection Committee was once again requested by the State Board on 17.10.2020 to re-inspect the site to verify whether the recommendations of the said committee have been complied with by M.C. Hamirpur at its Solid Waste Processing Facility. Recently, joint inspection of the site was once again conducted on 10.11.2020, under the Chairmanship of Addl. District Magistrate, Hamirpur alongwith Sub Divisional Magistrate Hamirpur, Environmental Engineer, (HPSPCB, Una), Executive Officer, (Municipal Council Hamirpur), Asstt. Engineer, (Jal Shakti Vibhag, Hamirpur) and Asstt. Environmental Engineer, (HPSPCB, Una).

Bench noted that the deficiencies still persist and the reason for the failure to take action on the ground has been lack of funds with the local body.

Tribunal held that the ground of “lack of funds” is not a valid ground as clean environment is a fundamental right for which funds are to arranged by the authorities either by collection from the citizens concerned or otherwise.

In view of the above, Bench directed the Secretary, Urban Development Department, Himachal Pradesh to ensure further remedial action.

Matter has been further listed for consideration on 24-03-2021. [Rita Sharma v. State of H.P., Original Application No. 05 of 2020, decided on 13-11-2020]

Advocates for the parties:

Applicants: Tushar Giri, Advocate

Respondents: Sanjay Kumar, Advocate for HPSPCB

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench of Justice Adarsh Kumar Goel (Chairperson) and Justice Sheo Kumar Singh (Judicial Member), Dr Satyawan Singh Garbyal and Dr Nagin Nanda (Expert Members), issue notice to consider whether the use of firecrackers may be banned for the period from 07-11-2020 to 30-11-2020 in the interest of public health and environment.

Issue raised in the present application is in regard to the remedial action against pollution by the use of firecrackers against pollution by use of firecrackers in NCR during the time air quality is unsatisfactory with potential of severity of COVID-19 pandemic.

Present application has been filed in reference to the statement by Delhi’s Health Minister and Union Health Minister that during the festive season there will be rise on COVID cases due to air pollution. Further, it was added that the use of ‘green crackers’ won’t be a remedial option in view of the present situation.

“The smoke will choke and may create gas chamber like situation. It will lead to poor visibility, hazy conditions and asphyxia.”

Supreme Court had considered the issue in regard to firecrackers in light of right to clean environment in the.

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

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

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

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

In Supreme Court’s decision of Noise Pollution (V), In Re., (2005) 5 SCC 733, directions were issued with regard to the noise level of the crackers.

It has been stated in the present application that the above-cited Supreme Court decisions do not address the COVID-19 situation wherein the adverse effect may be so that the number of deaths may increase along with the number of diseases.

It has been added that several reports in public domain state that the air quality of Delhi is deteriorating and further deterioration may give rise to an increase in COVID cases.

Since the firecrackers emit poisonous gases like SO2, NOX, CO as well as the metal besides creating noise. In the given climatic conditions, this may result in respiratory/pulmonary diseases, diabetic, hypertension and other diseases.

Experts have also opined on clear nexus of air pollution with COVID-19. With increased air pollution, virus can cause more damage.

On noting the above stated, Tribunal issued notice to the MoEF&CC, CPCB, DPCC, Police Commissioner, Delhi, Governments of Delhi, Haryana, Uttar Pradesh and Rajasthan on the question whether the use of firecrackers may be banned for the period from 07-11-2020 to 30-11-2020 in the interest of public health and environment.

Bench requested Raj Panjwani, Senior Advocate along with Advocate Shibani Ghosh to assist the Tribunal as amicus.

Matter to be listed don 05-11-2020.[Indian Social Responsibility Network v. Ministry of Environment, Forests & Climate Change;  2020 SCC OnLine NGT 858, decided on 02-11-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench of Justice Adarsh Kumar Goel (Chairperson) and Justice Sheo Kumar Singh (Judicial Member), Dr Satyawan Singh Garbyal and Dr Nagin Nanda (Exper Members) directs closure of garbage processing plant by Pune Municipal Corporation and to shift the same at any other place in light of same being in violation of right of the inhabitants to a pollution-free environment.

Present application was filed with a purpose to restrain respondent 7 from operating garbage processing plant at the present site on the ground of violation of environmental norms.

The said site was allotted by the Pune Municipal Corporation. Odour from the said plant is spread in the area. It has been added that the said land was reserved for bio-diversity park in the Development Plan which had been subsequently changed. No NOC from Airport Authority was also taken. Truck with garbage were transported without safeguards.

Environmental Clearance was granted in the year 2016 without following due procedure.

There sees to be a violation of Rule 20 of the Solid Waste Management Rules, 2016 which provides that location of such plant on a hill area is to be avoided unless no other land is available in which case suitable safeguards mentioned therein are to be followed.

In view of the above plant remained closed till January, 2019 and started again on 01-02-2019 on which the present application has been filed.

 Decision

Bench found that consent to establish the plant was required under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, and the said consent was no taken.

As per the Solid Waste Management Rules, 2016, furnishing of consent to establish is required before any authorization is given under the said Rules.

Adding to the above, tribunal stated that, the authorization is to be preceded by the consent to establish. Thereafter, there has to be consent to operate from time to time.

Apart from the above-stated procedural shortcoming, bench fond that the location of the plant at hillock and in the vicinity of habitation is not desirable and is at the cost of the right of the inhabitants to a pollution-free environment.

During the joint inspection, odour was found in and around the premises which itself violates the rights of the inhabitants in the vicinity.

It was found that the plant was within the prohibited distance and no place for the development of a green belt was found.

Hence the plant was found to be in violation of the right to clean environment of the inhabitants and against the statutory norms.

Tribunal directed PMC to close the plant at the present location and shift the same to any other location within four months from today, following the siting guidelines issued by the CPCB. The present site may be preferably used for originally designated purpose for developing a bio-diversity park.

Bench held that the State PCB is at liberty to recover environmental compensation on ‘Polluter Pays’ principle for the period of violation of environmental norms, after following due procedure of law.[Sus Road Baner Vikas Manch v. Pune Municipal Corpn.,  2020 SCC OnLine NGT 855, decided on 27-10-2020]

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 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 losing 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 the 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 the next hearing date. [Agatti Island, Lakshadweep v. UOI, 2020 SCC OnLine NGT 219, 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 a 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 dispute 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 dumpsite.

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,  2020 SCC OnLine NGT 193, 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]