Environmental Court Notes

environmental-court-notes

Environmental pollution is a serious threat to the survival of the human race and hence the State is shouldered with the responsibility to eradicate the same by-passing appropriate legislation and establishing the environmental court. The Stockholm Declaration 1972, also envisaged the passing of environmental legislation and establishment of special courts by all States to deal exclusively environmental matters and to speed up the disposal of the environmental cases. Further, the Supreme Court of India, while delivering its landmark decisions in environmental pollution cases suggested the establishment of specialised courts known as “Environmental Court or Green Benches”.

This Environmental Court may be set up in each State and Union Territory with an Appellate Court at Centre. The environmental court should consist of both legal and environmental experts in the decision-making process. It has the jurisdiction to decide all cases claiming compensation for environmental degradation and also to stop impending damage to the environment. For speedy disposal, the time limit should be prescribed to dispose of the case. The environmental court should be empowered to issue any order or direction by way of relief to the victims. Non-compliance by a polluter to such order or direction should be regarded as an offence punishable with imprisonment or fine or both. The jurisdiction of the Supreme Court over the environmental court should be allowed to stay under Article 136 of the Constitution.

Pursuant upon the recommendations from the courts and other authorities, the Government of India for the first time, made an attempt in 1989, to draft “Environment Court Bill” on the lines; pattern of Consumer Protection Act, 1986. This work was assigned to J.P.N. Bhagwati, who suggested the setting up of the Environmental Court. The Bill made provision for the establishment of the National Environment Court and the Environment Court for each State and Union Territory. But the attempt was not materialised for unknown reasons. On the contrary, the Government came forward with a new draft for establishing a National Environment Tribunal in 1992. The Bill envisages to cover environmental cases and to provide for compensation. In fact, the Bill was a sequel to the decision of the apex court in Delhi/Oleum Gas Leak case. However, the Bill was not introduced in the Parliament.

In view of increasing threats from the environmental hazards and the urgent need to prevent the same, the Indian Parliament passed the National Environment Tribunal Act, 1995, which enables the establishment of National Environment Tribunal at Centre and environmental court. Secondly, the parliament passed the National Environment Appellate Authority Act, 1997, which provides for the constitution of an “Authority” to hear the grievances pertaining to environmental pollutions. The third attempt is the passing Of the Public Liability Insurance Act, 1991. Under this Act, quasi-judicial powers are conferred on the District Collector. He is empowered to award compensation to the victims of hazardous substances. A brief summary of the said legislation is enumerated hereunder:

  1. The National Environment Tribunal Act, 1995;
  2. The National Environment Appellate Authority Act, 1997;
  3. The National Environment Appellate Authority (Appeal) Rules, 1997.
  4. The National Environment Tribunal Act, 1995:- The main object of the Act is to protect the environment from hazardous and inherently dangerous activities. It aims:
  5. to provide compensation to the victims of hazardous substances;
  6. to provide for national legislation in compliance with the recommendations of the Rio Summit/Earth Summit (Principle 11); and
  7. to develop and codify the principle of strict liability in all such cases and to establish a National Environment Tribunal for effective and speedy disposal of environmental cases and to pay appropriate compensation to the victims.

Salient Features:- The Act contains 31 sections covering five chapters and one schedule. The salient features of the Act are enumerated hereunder:

  1. Chapter I- Preliminary:- The Act shall come into force on such date or dates as the Central Government may by notification fix for different States. Section 2(a), 2(d) and of the Act define accident, environment and hazardous substance respectively as follows:

Accident:- According to Sec. 2(a), “accident” means “an accident involving a fortuitous or sudden or unintended occurrence while handling any hazardous substance resulting in continuous or intermittent or repeated exposure to death of or injury to any person or damage to any property or environment but does not include an accident by reason only of war or radioactivity”.

Environment:- According to Sec.2(d) of the Act, “environment” includes water, air and land and the inter-relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property”

Hazardous Substance:- According to Sec.2(f) of the Act, “hazardous substance” means any substance or preparation, which is defined as hazardous substance in the Environment (Protection) Act, 1986, and exceeding such quantity as specified by the Central Government under the Public Liability Insurance Act. 1991.

  1. Compensation:- Chapter-II containing sections 3 to 7 provides for compensation for the death of or injury to a person and damage to property and environment. According to Section 3, the owner shall be liable to pay compensation in such cases. Section 4 makes provision to apply for the compensation. The aggrieved (victim), or legal representative of the deceased or an authorised agent of the property damaged or any representative body or organisation recognised in this behalf by the Central Govt. State Govt. or Local Authority under all or any one of the heads specified in the schedule can make an application for compensation. Section 5 confers on the Tribunal (National Environment Tribunal) to enquire or summarily reject the application. The Tribunal need not follow strictly the provision under Civil Procedure Code, 1968 and may follow the principles of natural justice. The Tribunal under Sec. 6 may issue interim orders/relief. Section 7 empowers the Tribunal to reduce the amount of relief under certain circumstances.
  2. Establishment of Tribunal:- Chapter III containing Sections 8 to 18 deals with the establishment of Tribunal and Benches thereof. Sec 8 of the Act provides that, the Central Govt. by notification shall establish a tribunal, known as the “National Environment Tribunal” exercising powers and jurisdiction under the Act. Section 9 requires that Tribunal shall consist of a Chairperson and such number of Vice-Chairpersons, Judicial Members and Technical Members (Environmental Experts) as the Central Govt. may deem fit. Provision is made under Sec. 9 for the constitution of Benches. The Bench shall consist of one Judicial Member and one Technical Member (environmental expert).

Section 10 of the Act, qualifications for appointment as Chairperson, Vice- Chairperson and Member. Section 11 authorises the Vice-Chairperson to act as chairperson in the event of death, resignation etc. of the Chairperson. Section 12 prescribes/fixes the term of office of the members as five years from the date on which he assumes office. The member is eligible for re-appointment for another term of five years. Sec. 13 lays down the procedure for registration and removal. The Chairperson, Vice-Chairperson or another member may by notice in writing under his hand addressed to the President, resign his office. Section 14 provides for salaries, allowances and other terms and conditions of service of Chairperson, Vice-Chairperson and other members. Section 16 confers on Chairperson financial and administrative powers. Section 17 makes provision for staff and officers to assist the Tribunal. Section 18 lays down the procedure for distribution of business amongst the Benches.

  1. Jurisdiction:- Chapter IV containing Sections 19 to 24 deals with the jurisdiction and proceedings of the Tribunal. Section 19 lays Bar of Jurisdiction. Section 20 empowers the Tribunal to transfer cases from one bench to another. According to Section 21, the decisions are to be valid by the majority. Section 22 provides for deposit of amount payable for damage caused to the environment. The amount shall be credited to the Environmental Relief Fund created under sub-section 3 of Section 7-A of the Public Liability Insurance Act, 1991. According to Section 23, the award of the Tribunal shall be executed as a decree of the civil court. Section 24 makes provision to prefer an appeal to the Supreme Court against the award of the Tribunal.
  2. Miscellaneous Provisions:- Chapter-V containing Sections 25 to 31, lays down miscellaneous provisions, viz. penal provisions etc. Section 25 deals with penal provisions. Whoever. failed to comply with the order/award of the Tribunal shall be punishable with imprisonment, which may extend to three years or with fine which may extend to ten lakh rupees or with both. According to Section 28, the members and staff of the Tribunal are deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.

The Schedule:- The Schedule of the Act contains the ‘Heads under which compensation for damage may claim’. Viz. death, disablement etc.

  1. The National Environment Appellate Authority Act, 1997:

Salient Features of the Act:- The main object of the Act is the establishment of a ‘National Environment Appellate Authority’ to hear appeals with respect to restriction of areas in which any industrial operations shall not be carried out or shall be carried out with necessary safeguards under the Environment (Protection) Act 1986. It shall be deemed to have come into force on the 20th day of January 1997. It contains 23 sections divided into four Chapters:

Preliminary:- Chapter-I containing Sections 1 and 2 deals with preliminary aspects. Sec. 2 defines the terms: a) Act b) Authority; c) Chairperson: d) Member; e) prescribed; and f) Vice-Chairperson.

  1. Establishment of Authority: Section 3 of the Act under Chapter-II provides for the establishment of the National Environment Appellate Authority. It’s head office shall be at Delhi. It shall consist of Chairperson, Vice-Chairperson and not more than three members. Any Judge of the Supreme Court or the Chief Justice of a High Court is eligible for appointment as the Chairperson. The term of his office is three years, and he is eligible for reappointment for three more years. Section 9 deals with salaries and allowances and other service conditions of the members.
  2. Jurisdiction and Powers: Chapter-Ill containing Sections 11 to 14 deals with “jurisdiction and powers of the authority”. According to Section 11(1), any aggrieved by an order of environmental clearance may prefer an appeal within 30 days from the date of such order before the Appellate Authority (The National Environment Appellate Authority). According to Section 12, the authority shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice subject to provisions of the Act and the rules of the Central Government.
  3. Miscellaneous Provisions: Chapter-IV, containing Sections 15 to 23 lay down the miscellaneous provisions. Section 15 speaks about ‘Bar of Jurisdiction’. According to Section 15, “no civil court or other authority shall have jurisdiction to entertain any

appeal in respect of any matter with which the authority is so empowered by or under this Act. According to Section 17, the members and staff of the authority shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.

  1. The National Environment Appellate Authority (Appeal) Rules, 1997:
  2. These Rules may be called “The National Appellate Authority (Appeal) Rules, 1997″ and shall come into force from the date of their publication in the Official Gazette.
  3. Rule 2 defines the terms: a) Act; b) Appeal; c) Appellant; d) Authorised Representative; e) Authority; f) Member; g) party; h) Registrar; i) Section etc.
  4. The Head Quavers of the Authority shall be at New Delhi (Rule 4).
  5. Rule 5 provides for “Form of Memorandum of Appeal and its presentation before the authority. Rule 6 provides for registration of appeal.
  6. Rule 7 empowers the authority to adjourn the hearing of the appeal. Appeals against the same order can be clubbed and heard together by the authority (Rule 8).
  7. According to Rule 12(4), “No order of the Authority shall be questioned on the ground merely of the existence of any vacancy or defect in the constitution of the authority”.
  8. When there are no specific rules governing the leaving of the appeal, principles of Natural Justice shall be observed.

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