Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Coram comprising of Justice Adarsh Kumar Goel (Chairperson) and S.P. Wangdi (Judicial Member), K. Ramakrishnan (Judicial Member) and Dr Nagin Nanda (Expert Member) while deciding an appeal held that,

“Citizens are entitled to breathe in fresh air.”

The present appeal has been filed under Section 16(g) of the National Green Tribunal Act, 2010 against the order passed by Environment Pollution (Pollution & Control) Authority.

Following was held by the EPCA after noting that there is need to combat pollution so as to ensure that levels of pollution can be contained:

“Ban use of diesel generator sets (other than exclusion/emergency services) in Delhi and in vicinity towns- Ghaziabad, Noida and Greater Noida, Faridabad and Gurgaon, Sonipat, Panipat, Bahadurgarh. EPCA will send a list of the exclusion and emergency services that were permitted in NCR Delhi in the last winter for the use of all State governments.”

“This measure will require you to coordinate with the State Electricity Boards and ensure special efforts are made for 24×7 electricity in these towns to avoid requirement of operating DG sets and inconvenience to public.”

The above measures were asked to be taken in view of the below stated:

“EPCA has been advised by Task Force on Graded Response Action Plan, which is chaired by the member secretary of the Central Pollution Control Board that the coming period, beginning October 12, 2019 is projected to have adverse weather conditions, which will exacerbate the potential forpollution. The region is already in the ‘Moderate/poor’category in terms of air quality and, therefore, all efforts have to be made to ensure that the levels do not rise further, even with adverse weather conditions.”

The grievance of the appellant was that, there are limitations in distributing electricity in the entire area due to technical non-feasibility.

NGT noting the above, stated that Graded Response Action Plan (GRAP) was duly notified under the provisions of the Environment (Protection) Act, 1986 and is binding and that the impugned order is merely enforcing the GRAP, there is no illegality therein.

Adding to the above, tribunal held that,

Impugned action is an undoubted need for protection of environment and public health. If the appellant cannot supply electricity, it is for the appellant to find out ways and means within the purview of law. This cannot be ground to use DG sets in violation of air quality protection norms. Citizens are entitled to breathe in fresh air. Thus, no interference is called for. [Dakshin Haryana Bijli Vitaran Nigam v. Environment Pollution (Prevention & Control) Authority, Appeal No. 88 of 2019, decided on 15-10-2019]

Case BriefsSupreme Court

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

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

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

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

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

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

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

Background of the case:

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

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

Case BriefsSupreme Court

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

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

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

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

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

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

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

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

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