Case BriefsHigh Courts

Delhi High Court: Taking cognizance of far reaching effects of air pollution suo motu, the  Court asked the Governments of States of Punjab, Haryana, UP, Rajasthan, NCT of Delhi and the centre to file affidavits before the Court explaining the steps that are being taken within their jurisdictions to minimise air pollution. The affidavits were filed before a Division Bench comprising of S. Ravindra Bhat and S.P. Garg, JJ.

In the aforementioned affidavits, the States gave detailed explanation of the educating and awareness programmes which are in effect along with measures taken to detect and punish persons engaged in stubble burning. The Court, after due regard to all affidavits, gave the direction to the States to file periodic status reports through further affidavits. The affidavits are to be filed not later than by the second Tuesday of every alternative month, the next date being before 14th November, 2017. The affidavits are to be standardized and are to include the following particulars:

· Steps towards education and awareness relating to ills of stubble burning.

· Notifications, if issued, along with amendments/modifications if applicable.

· The number of times Standing Committees met during the interregnum period to monitor the progress of work done and progress, along    with copies of the minutes.

· The number of persons booked for stubble burning.

· Progress achieved in regard to research and development or alternative practices.

The Court further stated that it required the Union Secretaries, Ministry of Environment, Forest and Climate Change, Ministry of Science and Technology and the Ministry of Agriculture and Farmer’s Welfare to explore the possibility of creating a fund for innovation in farming techniques in coordination with such educational or technical institutions as are feasible to innovate new methods which are efficient and environment friendly. The Court directed the three Secretaries to hold a meeting in this regard within three weeks. The Central Government, may also create a fund and a Task Force in this regard, said the Court. The next hearing will take place on 29th August, 2017. [Court on its own Motion (Air Pollution in Delhi) v. Union of India, 2017 SCC OnLine Del 9428, order dated 18.07.2017]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): While expressing concern over pollution caused due to illegal disposal of effluent and waste, NGT directed Century Pulp and Paper Ltd. to pay Rs 30 lakh as environmental compensation for failing in managing pollution caused due to the effluents discharged in the stream which joins Gola River which flows into Ram Ganga and finally into Ganga. “The effluents exceeding the permissible norms being released in the environment are bound to cause environmental imbalance placing the flora and fauna under illegitimate stress and in the long run such effluents are bound to have deleterious effect on the environment. Considering the period of industrial activity and the volume of daily effluent generated we are of the considered opinion that the respondent no. 6- paper industry is liable to pay damages of Rs 30 lakhs,” the Tribunal noted. Said directions of the Tribunal came upon an application filed by an environmental activist and Member Secretary of organisation “People for Animals for Uttrakhand”, seeking directions to immediately stop discharge of harmful toxic effluents without any treatment and disposing wastes in forest and other revenue areas. After going through all the material on record, NGT noted that the paper industry had contributed to the environmental pollution in some measure and the degree of contribution to pollution is immaterial while deciding the liability of polluter. After imposing fine upon the Paper Company, NGT also constituted a team of senior scientists from the department of Environment Science, University of Jammu, Central Pollution Control Board (CPCB) and IIT Roorkee, to carry out survey and study of the area and the Gola River to ascertain environmental degradation caused and also suggest remedial measures for restoration of environment. Century Pulp and Paper Ltd. was also directed to pay a cost of Rs three lakh to the applicant. [Gauri Maulekhi v. Union of India, Original Application No. 486 of 2014, decided on May 4, 2016]

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT):While quashing the environmental clearance of a 450-bed super-specialty hospital in Faridabad granted by Haryana’s State Environmental Impact Assessment Authority (SEIAA), NGT directed the developers and promoters of the project to pay an environmental compensation of Rs 6.88 crore for “degrading the environment”, and another Rs 5 crore for having started the project without obtaining environmental clearance. The Tribunal also directed that the super-specialty hospital, started by Vivekanand Ashram Society and QRG Medicare Ltd., would not carry out any activity in the entire premises and ordered the Haryana State Pollution Control Board (HSPCP) and Haryana’s Environment Impact Assessment Authority (SEIAA) to seal the premises if any activity was carried out. The order of the Tribunal came on an appeal filed by an environmental activist, who claimed that rules and regulations of Haryana Urban Development Authority (HUDA) regarding land use does not permit construction of a super-specialty hospital at the site in question as the said land was initially allotted to the Vivekanand Ashram Society for establishing a residential school and a social development centre but was taken over for constructing a 450-bed multi- specialty hospital by QRG Medicare Ltd. After perusal of the material on record, NGT observed, “These are not innocent people unaware of the law residing in some remote parts of the country, all these are builders constructing huge residential, commercial, mixed-purpose blocks, like hospital, as in the present case. The project proponents are persons having large means and perspicacity. These projects started after the 2006 notification came into force, but the proponents did not even bothered to apply for the grant of environmental clearance.” The Tribunal, though, refused to order the demolition of the hospital at this stage but asked the State Government to constitute an independent committee to inspect the site and make recommendations to ensure that the project proponents complies with all the relevant laws, particularly in relation to the protection of environment, ecology, water and air pollution and to give its findings within 45 days. (Krishan Lal Gera v. State of Haryana, 2015 SCC OnLine NGT 194, decided on 25-8-2015)

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): While restraining Kumar Resorts, Amusement Pvt. Ltd. and Dhiraj Kumar Infrastructure India Pvt. Ltd. from hill-cutting for constructing a resort-cum hotel on a hill top at Lonavala, NGT also directed the developers to pay a compensation of Rs 10 lakh to the National Association for the Blind’s (NAB) welfare home. The said developers were constructing a resort-cum-hotel on a hill top at Lonavala and were allegedly causing environmental degradation and also endangering property of a welfare home for ageing blind located adjacent to the construction site. NGT also imposed a cost of Rs 5 lakh on the developers for illegal hill cutting and excavation of minor minerals that posed a potential threat of landslides, mudslides and damage to the welfare home. The Tribunal’s order came on an application filed by Lonavala-based NAB Lions Home for Aging Blind against the leading resort and Amusement Company. It was alleged in the application that Kumar Resorts acquired the adjoining plot on eastern side of the welfare home and the developers intended to construct a resort and a big hotel at the hilltop. It was further alleged that leveling of land by flattening of the hill area and cutting of trees by the developers could lead to soil erosion, landslides/mudslides, which posed a threat of damage to the welfare home property and the lives of its residents. During the course of proceedings, NGT appointed an expert committee, which found the claims to be true. “The expert committee perused record of rights and other records. The committee came to the conclusion that the hill has been privately and clandestinely cut and, therefore, prime concern now is prevention of landslides/mudslides,” the Tribunal observed. While awarding the compensation, Tribunal also warned the developers of sealing and selling off their premises if they fail to make the payment within the stipulated period. “The Revenue Officers like Collector and Commissioner, may call report from the local Municipal Council of Khandala and Lonavala and like places such as Satara, Kolhapur etc. where existence of hills ordinarily are noticeable in order to avoid instances of hill-cutting, being undertaken under guise of obtaining extraction permission for minor mineral and direct them not to issue permissions for construction on top of the hills, except for Bamboo huts/cottages,” NGT added in its order, NAB Lions Home for Aging Blind v. Kumar Resorts, 2015 SCC OnLine NGT 6, decided on May 26. 2015

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): National Green Tribunal has imposed a penalty of Rs 117.35 crore and Rs 22.5 crore on Mantri Tech Zone Pvt. Ltd. and Core Mind Software and Services Ltd. respectively, for commencing the construction work of two projects on the catchment area of Agara and Bellandur lakes in Bangalore even before obtaining the Environmental Clearance. Special Economic Zone (SEZ) project has been constructed by Mantri Tech Zone Pvt Ltd and another project by Core Mind Software and Services Ltd. in the area. NGT arrived at the amount of said penalty by calculating five per cent of the respective project costs. Though usual penalty imposed upon in such cases is 10 per cent, NGT observed that as the projects were big, the penalty was slashed in this case. The Tribunal, though, declined to pass an order or direction to stop further progress or demolition of the project; it imposed restrictions on creating third party rights by way of sale or lease. The order imposing penalty upon the two companies came upon an application filed by The Forward Foundation (a charitable trust), Praja RAAG society and Bangalore Environment Trust seeking direction to save the ecologically-sensitive valley between the Bangalore city’s two lakes; Agara and Bellandur and alleging that two companies were involved in the construction of an SEZ park, hotels, apartments and a mall on around 80 acres of land, which was a catchment area. It was further alleged that the project has encroached an Ecologically Sensitive Area, namely, the valley and the catchment area and “Rajakaluves” (Storm Water Drains) which drains rain water into the Bellandur Lake. After perusal of documents on record which included reports prepared by a Committee chaired by Justice N.K. Patil and also a report prepared by ENVIS, Centre for Ecological Sciences, Indian Institute of Science, Bangalore, NGT noted, “There is sufficient material by way of reports, google images and other documents that the Bellandur Lake and even other lakes for that matter have wetlands and catchment areas.” NGT further noted that there was a definite possibility of environment, ecology, lakes and the wetlands being adversely affected by these projects. While observing that the project’s proponents were liable to pay compensation under the ‘Polluter Pays’ Principle, for the illegal and unauthorised construction carried on in violation of environmental laws and prior to the granting of Environmental Clearance, the Tribunal imposed penalty upon the Companies. The Tribunal also formed an eight-member committee to inspect the projects in question and submit a report to the Tribunal, on continuance of the projects. The Forward Foundation v. State of Karnataka, 2015 SCC OnLine NGT 5, decided on May 7, 2015

Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): “While rejecting the contention of the Ministry of Environment & Forests (MoEF) that it was difficult to trace the decade old document and observing that ‘failure to trace records’ would not exempt the public authority from their duty to provide the information sought,” CIC directed the Ministry to post the records related to Rs 16,000-crore Indira Sagar Polavaram project in West Godawari District, A.P., on its website. The Commission was hearing an appeal filed by a person whose RTI application seeking information in relation to environmental clearance granted to the said project, was not responded. In appeal, though the First Appellate Authority directed PIO to make all efforts to trace the record and provide the relevant information, said information was not provided. Against the non-compliance, appellant approached CIC, and alleged that he was denied information on the ground that the record sought was ‘decade old’ and the documents were scattered at different places due to shifting of the office, thus describing them as non-traceable. The appellant further submitted that this statement itself indicates grave negligence and utter failure of the Ministry in keeping the precious public records of a significant project to which the government accorded national status. In its defense, Ministry submitted that the delay in furnishing information was because of exigencies related to various projects, court cases before the Supreme Court, National Green Tribunal, and High Court besides Parliament related works. After hearing both the parties, CIC directed MoEF to place all available information of Polavaram project on their official website as per Section 4 (1); (b) subject to Section 8 of RTI Act, so that information requirements are effectively answered as Polavaram project was very significant for Andhra Pradesh, Telangana, Odisha and Chattisgarh, and was declared as National Project.. The Commission also directed PIO to furnish copies relating to Environmental Clearance at first instance, and also when the issue of Environmental Clearance was revisited for Indira Sagar Polavaram project in West Godavari district in Andhra Pradesh, file notings and correspondences along with minutes of meeting in 2009, copies of letters by the Ministry to State of Andhra Pradesh, Odisha and Chhattisgarh and their response thereof. (D. Suresh Kumar v. PIO, Ministry of Environment & Forests, 2015 SCC OnLine CIC 608, decided on 30.04.2015)

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): NGT has directed Delhi Tourism and Transportation Corporation (DTTC) to get an environmental clearance for the under construction “Signature Bridge” over the Yamuna river at Wazirabad in Delhi. “Signature Bridge” across River Yamuna is an eight-lane wide bridge, connecting Eastern and Western parts of Delhi. The total area of Signature Bridge Project is 1,55,260 sq. mtrs. and it is under construction since 2008. The order of NGT came upon an application filed by an environmentalist, who had alleged that construction of the said bridge started without obtaining prior Environmental Clearance from the Regulatory Authority in terms of the provisions of the Environment Clearance Regulations, 2006 and construction of the bridge is likely to impact River Yamuna and river hydrology adversely. In its defense, DTTC submitted that it had applied to the MoEF for seeking Environmental Clearance for execution of the project but it was informed by MoEF, that ‘Bridges’ are not covered under the Regulations of 2006 and as such Environmental Clearance is not required. After perusal of material on record, NGT directed Delhi government to seek environmental clearance within three weeks and further noted, “As more than 80 per cent of the bridge has been completed… we do not direct demolition thereof in public interest. However, we direct SEIAA to put such terms and conditions as may be necessary to ensure that there are no adverse impacts on environment, ecology, biodiversity and environmental flow of River Yamuna and its floodplain.”(Vikrant Kumar Tongad v. Delhi Tourism and Transportation Corpn., 2015 SCC OnLine NGT 3, decided on February 12, 2015)

Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): While coming down heavily upon Ministry of Environment and Forests for rendering “false and misleading” information in response to an RTI application seeking information on the harmful effects of electromagnetic radiation emitted by cellphone towers on human beings, CIC issued a show cause to the Ministry asking why maximum penalty should not be imposed for false and misleading information on such a vital issue of public importance. The said order of the Commission came upon an RTI application filed by a person who sought information in relation to World Health Organization (WHO) press release –“ Radio frequency Electro Magnetic Fields (EMF) as possible carcinogenic” to humans based on increased risks for glioma, a malignant type brain cancer and also if any action has been taken by the Ministry in this regard. The applicant also sought to know if Ministry has conducted any study to gather data of Electro Magnetic Fields to measure the harmful biological effects of EMF on human beings and if it has declared radio frequency electromagnetic fields as a source of Air pollution. The Ministry, in response to his query had submitted that it had not undertaken or sponsored any study to gather data to measure the alleged harmful biological effects of EMF on human beings from Cell phone tower. However, during the proceedings before CIC, it was found that an inter-ministerial group was constituted by Ministry of Communication and Information Technology and Department of Telecommunication in 2010, which had reported that EMF can have adverse effects on humans and had also suggested that cellphone towers not be installed near schools, residential colonies and hospitals. While reprimanding the officials of Ministry for providing false information, Commission noted, “The Commission found that the answer of the CPIO in response to this RTI request is false and misleading. They said a) there is no study, but there is study, b) there is no adverse impact on human beings, but the report confirmed adverse impact of EMF, c) were not aware of, but they knew or presumed to have known the contents of both reports by WHO and Inter-Ministerial Group, as those reports were placed on their official website”. “The commission is surprised that the respondent authority knew that the report was submitted by the inter-ministerial group, but officers neither cared to submit the copy of the report nor read it. The commission could trace the report from the websites of department of telecommunication and DDA”, noted CIC and issued a show cause notice upon the Ministry in the matter. Suresh Chander Gupta v. Ministry of Environment & Forests, 2015 SCC OnLine CIC 601, decided on February 20, 2015)

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): Pune Municipal Corporation (PMC) has been directed by NGT to expeditiously remove all the debris dumped including embankments constructed at the bank of river Mutha in Vitthalwadi. This order of the Tribunal came upon a petition filed by a local environmentalist who sought implementation of directions passed by NGT in an earlier petition filed in the same matter. Earlier, the petitioner had filed a petition before NGT alleging that the construction work of a road along the Mutha River inside the blue line is not allowed and debris had been dumped within the blue line. While disposing of the petition on July 11, 2013, the tribunal had directed the civic body to remove all debris from the blue line and also to construct the road on elevated pillars in the area that falls within the blue line. When the directions of the said order were not implemented, the petitioner approached NGT contending that as the earlier order had not been challenged and hence attained finality, implementation must be done. The Tribunal asked Pune Municipal Corporation to start removal of debris from Mutha riverbed within 15 days and complete the process within three months. It further said that Chief Engineer PWD (Public Works Department) of the state would carry out the work of removal of debris and the embankment if PMC fails to follow the earlier judgment. “Cost and expenses incurred shall be recovered from the respondent no. 1- Pune Municipal Corporation and shall be defrayed from their account accordingly,” added NGT. (Sarang Yadwakar v. Pune Municipal Corporation, 2015 SCC OnLine NGT 2, decided on January 14, 2015)

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): NGT has allowed a petition filed by Nirma Ltd. challenging the order of Ministry of Environment and Forests (MoEF) vide which it revoked the environmental clearance granted to Nirma Ltd. for its 1.91 million tonnes per annum (MTPA) capacity cement plant along a water body at Mahua in Bhavnagar district of Gujarat. The case pertains to cancellation of environmental clearance to cement project of Nirma Ltd. by MoEF after an assessment report by a seven-member expert committee reported that the said land possessed all the characteristics features of wetland ecosystem and cannot be disturbed by setting up a cement plant. The farmers of the area challenged the decision of the Government of Gujarat for setting up of such plant in the middle of sweet water reservoir created by the construction of 250 meters long waste weir called Samadhiyala Bandhara, alleging that the proposed site of the plant also occupied the land falling in catchment area of reservoir and construction of the cement plant in such circumstances would destroy the entire reservoir. The main issue before NGT was to determine the correct factual position of the area, which Nirma Ltd. claimed to be a wasteland while the farmers contend was a wetland. During the pendency of appeal, the Expert Members of NGT inspected the Project site in question twice in order to have clear perspective with the reference to the waste land / water bodies Bandharas and adverse effect of the Project on the environment. On the first visit, the Expert Members noticed that the Bandhara was totally dry despite good rains over short period and on second visit it was noticed that the Bandhara was almost at full level with shallow water depth all over in submergence and no part of the proposed project land was under submergence and the adjoining areas beyond the boundaries of the proposed project land was having shallow water accumulation. Expert Members also noticed during their second visit that there was growth of aquatic vegetation and presence of few migratory birds around the water body. After perusal of material on record, NGT observed, “The revenue records described the area in question as a ‘wasteland’ and it was never, even till today, identified as wetland by the Central Wetlands Regulatory Authority and so notified by the Central Government under the provisions of the Act for the purposes of Wetland (Conservation & Management) Rules, 2010.” While insisting that Samadhiyala Bandhara is not a wetland at all, NGT clarified that it is actually “a temporary storage of water, which gets used by farmers or gets evaporated due to its large spread, or gets percolated due to fairly high porosity of soil and as such cannot be called as a productive wetland having all perennial features of a wetland.” In its order NGT also emphasized upon the “wise use” of wetland for “development” and directed the State Pollution Control Board to monitor and undertake study of the effects of running of the project on the water body of such nature created by Samdiyala Bandhara for two years from the date of the commencement of the project. (Nirma Ltd. v. Ministry of Environment & Forests, 2015 SCC OnLine NGT 1, decided on January 14, 2015).

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): While applying “polluter pays principle”, NGT imposed a penalty of Rs. 5 Crores upon Simbhaoli Sugar Mills and Distillery, a sugar manufacturing unit, for directly causing water pollution in the River Ganga, particularly, between Garh Mukteshwar and Narora, due to discharge of highly toxic and harmful effluents. NGT also slapped a fine of Rs. 25 Lakh on Gopalji Milk Food & Pvt. Ltd., a dairy products manufacturing unit for polluting River Ganga due to discharging untreated effluents into the Simbhaoli drain. The order imposing penalties came upon the petition filed jointly by an environmentalist and a Greater Noida based organisation working in the field of environment, Social Action for Forest & Environment (SAFE). It was alleged in the petition that the sugar mill discharged untreated effluents into the drain which finally joins the River Ganga and the other unit Gopalji Dairy which is producing milk and milk products of different kinds, also discharges untreated effluents in the same Simbhaoli drain. It was further alleged that the contamination from discharge of trade effluents is so high that it not only pollutes the Syana Escape canal and the River Ganga but also threatens the life of endangered aquatic species such as dolphins, turtles and other aquatic life. Allegations regarding pollution of the groundwater of villages from where the river passes through were also imposed in the application. After perusal of all material on record, NGT held that the sugar unit is responsible “… for causing great environmental pollution of different water bodies including the Phuldera drain, the Syana escape canal, the river Ganga and even the groundwater in and around the area of this industrial unit. Besides scientific data of inspection by experts, officers of the Pollution Control Board, analysis report and the fact that the water in the Phuldera drain had turned brown, even to the naked eye, demonstrates the extent of pollution caused by this unit.” NGT further added that, “this unit has operated without consent of the Boards from1974 till the year 1991, thereafter; it committed default in compliance of the conditions of the consent right up to the year 2000. Even thereafter, it did not strictly comply with the conditions and directions issued by the respective Boards. This unit is a direct source of polluting River Ganga.” While NGT directed the sugar unit to pay a compensation of Rs.5 crore to the Uttar Pradesh Pollution Control Board (UPPCB) for restoration and restitution of the degraded and damaged environment and for causing pollution of different water bodies, particularly the river Ganga, the Bench took a liberal view for the dairy unit and imposed compensation of Rs. 25 Lakh as the unit “had made serious efforts to check pollution,” and had also assured compliance to orders and becoming a non-polluting unit. (Krishan Kant Singh v. National Ganga River Basin Authority, 2014 SCC OnLine NGT 2364, decided on October 16, 2014)

To read the full judgment, refer SCCOnLine

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal: While deprecating the highhanded activities of erring officials of the Maharashtra State Road Development Corporation (MSRDC), RTO, Tehasildar and RFO, without whose connivance, a large number of tree felling activity could not have been undertaken at eco-sensitive area of Banda village in Sindhudurg, NGT directed Divisional Commissioner, Kokan Division to conduct enquiry in the matter and to ensure Departmental action against the guilty officials. NGT was hearing a petition filed by a applicant whose land was acquired on account of road widening, modernization and establishment of check post at Banda. It was alleged in the petition that modernization and installation of check post would cause soil erosion, water logging and immense ecological imbalance in the area due to illegal felling of trees, illegal mining and degradation of environment. After perusal of the records, NGT observed that excessive large number of unscheduled trees have been cut down and removed by the contractor, namely, the Maharashtra Border Check Post Network Limited (MBCPNL) to whom the MSRDC had assigned the project work, so as to clear the site and no serious effort was made by the government officials to immediately intervene while such tree felling activity was going on nor serious action was taken. Maharashtra State Road Development Corporation (MSRDC) was directed to carry out compensatory afforestation of 44, 000 trees in the concerned area by NGT. Costs of Rs. 10 lakh was also imposed upon the contractor, Maharashtra Border Check Post Network Limited (MBCPNL) for damages caused to environment. (Saiprasad Mangesh Kalyankar v. Regional Transport Officer, Application No.28 of 2014, decided on September 10, 2014)

To read the full order, refer SCCOnLine