The National Green Tribunal on Monday held that it has the jurisdiction to institute suomotu proceedings against environment law defaulters and it thus held that the orders passed by the Tribunal against South Korean company LG Polymers in a suomotu case registered for chemical gas leak at Vizag in Andhra Pradesh, are not illegal.
The observation were made by a bench headed by NGT Chairperson Justice Adarsh Kumar Goel in a review petition moved by LG Polymers that the NGT cannot exercise suomotu jurisdiction.
The National green tribunal held,
“National Green Tribunal 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.“
Placing reliance on State of Meghalaya v. All Dimasa Students Union (2019) 8 SCC 177, whereby the Supreme Court had observed that the use of words like such orders; gives such directions as may be necessary or expedient; order to prevent abuse of process; etc., “enable the Tribunal to pass orders and the above words confer wide discretion“, the tribunal said,
“This is especially so when the victims are marginalized and/or by reason of poverty or disability or socially or economically disadvantaged position cannot approach the National green Tribunal.”
It argued that if the National Green Tribunal does not have the power to institute suo moto proceedings, it will be “robbed” of its efficacy of preventing environmental damage and providing relief to the affected population.
“If National Green Tribunal 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 raisond’etre, and render it nugatory and futile.“
Backdrop
The hazardous gas leakage occurred in the early hours on May 7 resulting in death of 11 persons (now 12) and hospitalization of more than 100 people, of whom at least 25 were then reported to be serious.
The National Green Tribunal thus took cognizance of the incident vide an order dated May 8, directed LG Polymers to deposit an initial amount of Rs. 50 Crore with the District Magistrate, Vishakhapatnam.
This order was challenged by the Company before the Supreme Court, questioning the jurisdiction of National Green Tribunal to take suomotu cognizance.
The Supreme Court, via order dated May 19, gave liberty to the Company to raise appropriate contentions before the NGT itself, due to which the instant review petition was filed.
Findings
Power to take suo moto action
In its order, the National Green Tribunal bench also comprising of Justice Sheo Kumar Singh and Dr. Nagin Nanda, emphasized that the under section 15 of the National Green Tribunal act the tribunal alone has the power to provide relief and compensation to the victims of pollution and other environmental damages, restitution of property and environment.
Reliance was also placed on a three-judge bench judgment of the Supreme Court in Bhopal Gas PeedithMahilaUdyog v. Union of India, (2012) 8 SCC 326, which discerned that the National Green Tribunal is a “statutory and specialized forum” to deal with any issues related to environment.
The national green tribunal observed,
“There is no other forum entrusted such jurisdiction exclusively. Several serious issues of environment, including air, water, soil, and other life-threatening pollution have been taken up by this Tribunal suo-motu. The citizens affected in these cases were unable to access their remedies and approach the Tribunal, limited by varying disabilities and handicaps…
If this Tribunal is prevented from instituting suo-motu proceedings, these issues and violations would remain unaddressed, citizens’ inalienable right to life and other rights will stand jeopardized, and the serious and irreversible environment damage would continue unchecked.“
The Tribunal emphasized that taking a “hyper technical” approach of a Judicial Forum in dealing with the environmental issues would defeat the ends of justice, especially in matters where Right to Life is implicated.
It stated, “Once patent violations affecting Right to Life are in public domain, the court cannot be debarred from remedying the same on the sole ground that the affected party has it moved the court. The court can devide its own procedure to investigate and give relief to the victims in appropriate cases.“
The Tribunal stated that it has underlying “duty” to exercise its powers in order to achieve the objective of giving relief and compensation for damages to persons, property and the environment.
It observed, “The power is coupled with duty to exercise such powers for achieving the enumerated objects. Failure to exercise suomotu jurisdiction in such circumstances would render these victims without remedy, causing irretrievable injustice and breakdown of Rule of Law.“
Power to take suo moto cognizance necessary to render justice to people living in remote areas
The Tribunal said that if the approach suggested by the company were to be pursued justice will never reach the underprivileged population living in remote ares.
It observed, “No-one may raise such issues, much less the affected individuals suffering silently specially in remote areas. If even a third person claiming to be ‘public spirited’ can be given locus, why publicly known serious violations of environment affecting the Rule of law, human and existential rights must be objected to be protected by this Tribunal on such specious plea in the face of a clear constitutional, statutory, and international law mandate,” it said.
The bench added,
“Notwithstanding Constitutional jurisdiction of the High Courts, the Tribunal is not debarred from dealing with substantial issues of environment for which this Tribunal has been exclusively constituted, in absence of express statutory provision or binding judicial decision. Any other view may seriously hamper environmental justice and scheme of parliamentary law and judgements of the Hon’ble Supreme Court. Issue of procedure is in discretion of this Tribunal, including initiation of suo-motu proceedings, unless expressly barred.“
Argument that notices have been issued to NGT on institution of suomotu proceedings
The Company also cited a plethora of cases in its application, where notices have been issued on NGT’s institution of suomotu proceedings.
In this context the Tribunal clarified that all the cases referred to by the Company were pending and no final decision has been taken therein.
It said, “As regards cited orders, where notice has been issued on NGT’s institution of suo-motu proceedings, the facts of those cases may be entirely distinguishable. The matters are pending, no decision has been made on the said contention nor binding law discussed. It cannot be taken that NGT has been debarred from instituting suomotu proceedings in matters of even such grave nature as the present one. There being no stay of proceedings in this case, we find no merit in the Company’s contention.“
Argument that pursuant to suomotu cognizance taken by the High Court, there was no occasion for the National Green Tribunal to appoint a further Committee
The Company argued that the Andhra Pradesh HC hadalready taken cognizance of the incident and the state government had constituted a committee to look into the reasons for leakage. Committees had also been constituted by the District Magistrate, Central Government and the National Human Right Commission and thus there was no occasion for the NGT to take cognizance of the matter.
Rejecting this argument, the national green Tribunal noted,
“The specialized 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.“
The Company had also submitted that it will face inconvenience in dealing with multiple proceedings before different fora.
Taking exception to the submission that the company will face inconvenience in dealing with multiple proceedings before different fora, the bench said,
“The plea of inconvenience is absurd and untenable in the face of clear and absolute liability of the company for the loss of life, public health and the environment by its hazardous activities in violation of law.“
Liability of the Company
The Tribunal observed that the company operated without Environmental Clearance and the grant of ‘Consent to Establish’ and ‘Consent to Operate’ certificates was a result of administrative oversight. Hence, it held that there is a violation of the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989.
“There is violation of 1989 Rules. Liability of the Company is strict and absolute under the law. Burden of proof to show that it has no liability is on the company. Overwhelming material establish the liability of the company. The amount deposited has thus to be appropriated towards part liability and interim compensation subject to further orders after giving further opportunity to the company. This is without prejudice to final liability being quantified based on further study and proceedings under any other law.“
The matter will now be heard on November 3, 2020.
In the interregnum, the following directions have been issued by the national green tribunal :
- The amount of Rs. 50 crores deposited by the Company with the District Magistrate, 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.
- Restoration plan may be prepared by a Committee comprising two representatives each of MoEF&CC, CPCB and three representatives of State Government to be named by the Chief Secretary, including the District Magistrate, Vishakhapatnam and such other concerned Departments 50 within two months from today. MoEF&CC will be the nodal agency for the purpose.
- Final quantification of compensation may be assessed by a Committee comprising representatives of MoEF&CC, CPCB and NEERI. The said Committee will be at liberty to associate/co-opt any other expert institution or individual. The Secretary, MoEF&CC may ensure constitution of such Committee within two weeks from today. The Committee may give its report within two months thereafter. MoEF&CC will be the nodal agency for the purpose.
- 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 two months and give a report to this Tribunal
- In view of the stand of the State PCB and the Company that it will not recommence its operation without requisite statutory clearances, we direct that if any such statutory clearances are granted and the Company proposes to recommence, this aspect must be brought to the notice of this Tribunal so that compliance of law is ensured.
- The MoEF&CC 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 three months from today.
Case Details:
Case Title
In re: Gas Leak at LG Polymers Chemical Plant in RR Venkatapuram Village, Visakhapatnam in Andhra Pradesh
Case No.
Review Application No. 19/2020
Quorum
Chairperson Justice Adarsh Kumar, Justice Sheo Kumar Singh and Dr. Nagin Nanda
Appearance
Senior Advocate Sidharth Luthra with Advocate Anuj Berry (for LG Polymers India); Senior Advocate Nikhil Nayyar with Advocate TVS RaghavendraSreyas (for Andhra Pradesh PCB); Advocate Raj Kumar (for CPCB); Advocate Satyalipsu Ray (for MoEF)
Read the order here:
