Environmental LawsEnvironmental Laws in India Via National Green Tribunal

Environmental Laws in India Via National Green Tribunal

In 2010, National Green Tribunal (NGT) was constituted , in terms of India’s commitment to Stockholm Declaration of 1972 and Rio de Janerio Declaration of 1992 for judicial & administrative redress for national environment laws , remedy  & compensation to victims of pollution .

It works on a principle that  Polluter has to pay and this can be seen from the body of section 20 of the act .

Section 20. Tribunal to apply certain principles.

The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.

India is the third country in the world, after New Zealand and Australia , to have exclusive court , i.e NGT, to deal with environment laws.

NGT is governed by National Green Tribunal Act,2010 which has been vested with powers at par with High Court of India .

Some of the interesting aspects and legality involved in working of NGT .

Composition of NGT

  The Tribunal consists of-

1. a full time Chairperson;
2. not less than ten but subject to maximum of twenty full time Judicial Members as the Central Government may, from time to time, notify;
3. not less than ten but subject to maximum of twenty full time Expert Members, as the Central Government may, from time to time, notify.

All the members in NGT are included in terms of Section 4 of the act .

 Jurisdiction for Environmental Laws

• NGT is a tribunal for environmental issues but it has been given an upper hand than other Tribunals of India .

In terms of Section 14 of the Act, NGT has jurisdiction on all civil matters where substantial question relating to environment arises out of the following Acts :

1. Water (Prevention and Control of Pollution ) Act, 1974
2. Water (Prevention and Control of Pollution ) Cess Act, 1977
3. Forest ( Conservation) Act, 1980
4. Air(Prevention and Control of Pollution ) Act, 1981
5. Environment (Protection) Act,1986
6. Public Liability Insurance Act,1991
7. Biological Diversity Act ,2002

Orders of NGT Appealable to Supreme Court

• Orders of NGT is appealable, under Section 22 of the act , only to Supreme Court of India within 90 days from the date of communication of the decision/order of NGT .

Section 22. Appeal to Supreme Court.

Any person aggrieved by any award, decision or order of the Tribunal, may, file an appeal to the Supreme Court, within ninety days from the date of communication of the award, decision or order of the Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908:Provided that the Supreme Court may entertain any appeal after the expiry of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal

• High Courts have no say and interference in working and orders of NGT.

• Orders passed by NGT are rarely interfered by Supreme Court of India. Since, NGT involves technical expert members of environment & environmental laws beside having Judicial members to constitute a bench .

Power To Review

• NGT has specific power to review, under section 19(f) , its own orders. Whereas, other Tribunals of India are precluded from review of order. Other Tribunals are limited to entertaining rectification of mistakes which are apparent on record from the body of the order only.

• NGT has various other powers by virtue of Section 19 of the act

“Section 19. Procedure and powers of Tribunal. –

1. The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.

2. Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.

3. The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.

4. The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:-

1. summoning and enforcing the attendance of any person and examining him on oath;

1. requiring the discovery and production of documents;

1. receiving evidence on affidavits;

1. subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or copy of such record or document from any office;

1. issuing commissions for the examination of witnesses or documents;

1. reviewing its decision;

1. dismissing an application for default or deciding it ex parte;

1. setting aside any order of dismissal of any application for default or any order passed by it ex parte;

1. pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;

1. pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;

1. any other matter which may be prescribed.

5. All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. “

Power to Initiate Contempt of Court

In terms of Section 26 of the act , NGT has impeccable power to initiate proceedings for contempt of court, at par with a High Court which is reflected from Section 26 of the act .

The same was discussed in length in recent order of Principle Bench of NGT in the matter of Braj Foundation Vs S Govt of U.P Ors dtd 5th August 2014 in Application No. 278/2013 And M.A. No. 110/2014 as below :

            “24. Even otherwise the NGT Act itself confers enormous power on the Tribunal to deal with any person       who fails to comply with the order or award either by punishing with imprisonment up to 3 years or to         impose a fine up-to 10 Crores under Section 26 which is as follows:

            S 26. Penalty for failure to comply with orders of Tribunal (1) Whosoever, fails to comply with any order or award or decision of the Tribunal under this act, he shall be punishable with imprisonment  for a term which may extend to three years, or with fine which may extend to ten crore rupees, or with both and in case the failure or contravention continues, with additional fine which may extend to twenty-five thousand rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention: Provided that in case a company fails to comply with any order or award or a decision of the Tribunal under this Act, such company shall be punishable with fine which may extend to twenty-five crore rupees, and in case the failure or contravention continues, with additional fine which may extend to one lakh rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be deemed to be non-cognizable within the meaning of the said Code.”

Recently ,NGT initiated  contempt of court proceedings as below :

1. NGT charged the district magistrate of Baghpat with contempt of court for failing to shut down 600 brick kilns running illegally, without the mandatory environment   clearances. On September 8, 2013 environmentalist Lokender Kumar had filed a petition in NGT seeking that steps be taken to stem the growth of a number of illegal   brick kilns in the rural belt of Baghpat. The district magistrate was among the  respondents in the case.
2. In another instance , the NGT has issued bailable warrant against the Delhi Chief Secretary for failure of officials to appear before it for apprising about the    implementation of closure orders of stainless steel pickling firms .

Prominent NGT Orders

1. banned all 10-year-old diesel vehicles from plying on Delhi roads
2.   ban plying of vehicles more than 15 years old on Delhi roads
3. Seal of JW Marriot , Ghaziabad

Many more strict orders are in pipeline as the crack is already on usage of plastic

Conclusion

Time has come when industries have to comply with the environmental laws in true spirit otherwise , swords of NGT may fall anyday .

by Anand Mishra, Founder Advocate, AMLEGALS

( The author is a leading advocate and handling cases in Tribunals & High Courts of India. He can be contacted on anand@amlegals.com .For more please refer www.amlegals.com .