Amendments to existing lawsLegislation Updates

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

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

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

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

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

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

[Dated: 22-02-2019]

Ministry of Environment, Forest and Climate Change

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

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

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

 

Case BriefsSupreme Court

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Case BriefsSupreme Court

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

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

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

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

Hot Off The PressNews

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

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

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

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

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

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

[Source: PTI]

Hot Off The PressNews

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

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

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

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

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

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

[Source: The Hindu BusinessLine]

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

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

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

Case BriefsTribunals/Commissions/Regulatory Bodies

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

Case BriefsTribunals/Commissions/Regulatory Bodies

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

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): While observing that a public spirited person is expected to be diligent in pursuing public cause and not be indolent and lackadaisical, particularly when his action is likely to hinder and jeopardize public work of high magnitude and proportion, NGT dismissed an appeal filed by an environmentalist stating that the appeal was barred by limitation. The said appeal was filed before NGT by a former Professor of economics of IIM Begaluru, presently living at Lakshmoli in Uttarakhand. It was alleged in the appeal that Singoli-Bhatwari hydro-electric project on the river Mandakini in the State of Uttarakhand has been started by L&T Uttranchal Hydro Electric Pvt. Ltd. without complying with the Environment and Forest Clearance and various other safeguards. It was further alleged that no permission of the National Board of Wildlife was sought for before the land for the project was transferred to the State Forest Department and the design of the project was also faulty. Before the Tribunal, L&T Uttranchal Hydro Electric Pvt. Ltd. denied all the allegations and submitted that all the required conditions for the Project have been complied. It was further contended by L&T Uttranchal Hydro Electric Pvt. Ltd. that the delay in filing the application was inordinate as the project had commenced on the basis of valid environment and forest clearances given in the 2006, 2007 and 2009. In his defence, the appellant submitted that the matter came to his knowledge only in July, 2014, after which he approached the Tribunal. After perusing the material on record and hearing both the parties, NGT dismissed the appeal and noted, “We unhesitatingly hold that the Application is inordinately delayed and, therefore, barred by limitation. A public spirited person which the Applicant claims to be is expected to be diligent in pursuing public cause and not be indolent and lackadaisical, particularly when his action is likely to hinder and jeopardize public work of the magnitude and proportion as the project in question.” [Bharat Jhunjhunwala v. Union of India, 2016 SCC OnLine NGT 161, decided on May 4, 2016]