The National Green Tribunal on Monday held that it has the power and jurisdiction to institute suo moto proceedings against environment law defaulters and it thus held that the orders passed by the Tribunal against South Korean company LG Polymers in a suo moto case registered against the fateful incident of chemical gas leak at Vizag in Andhra Pradesh, are not illegal.
The observation has been made by a bench headed by NGT Chairperson Justice Adarsh Kumar Goel in a review petition moved by LG Polymers, stating that the NGT cannot exercise suo moto jurisdiction.
"NGT 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," the Tribunal has held.
Reliance was placed 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 Tribunal," as the Vigaz Gas Leak has affected the residents of a nearby village.
It said that if the NGT is presumed to 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 NGT 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," the order states.
The hazardous gas leakage incident occurred in the wee 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 NGT thus took cognizance of the incident vide an order dated May 8, directed LG Polymers to forthwith deposit an initial amount of Rs. 50 Crore with the District Magistrate, Vishakhapatnam.
This order was challenged by the Company before the Supreme Court, not disputing the direction for deposit of security, but questioning the jurisdiction of NGT to take suo motu cognizance.
The Supreme Court, vide order dated May 19, gave liberty to the Company to raise appropriate contentions before the NGT itself, pursuant to which the instant review petition was filed.
Power to take suo moto action
In its order, the NGT bench also comprising of Justice Sheo Kumar Singh and Dr. Nagin Nanda, has emphasized that the NGT alone has the power to provide relief and compensation to the victims of pollution and other environmental damages, restitution of property and environment. (See Section 15 of the NGT Act)
Reliance was placed on a three-judge bench judgment of the Supreme Court in Bhopal Gas Peedith Mahila Udyog v. Union of India, (2012) 8 SCC 326, which discerned that the NGT is a "statutory and specialized forum" to deal with any issues relating to environment.
"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 thus observed.
The Tribunal emphasized that the approach of a Judicial Forum in dealing with the environmental issues cannot be "hyper technical", for that would defeat the ends of justice, especially in matters where Right to Life is implicated.
"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," it said.
The Tribunal observed that it has underlying "duty" to exercise its powers so as to achieve the objective of giving relief and compensation for damages to persons, property and the environment.
"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, no one will raise the issues being faced by the underprivileged population, and Justice will never reach remote areas.
"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 suo motu proceedings
Significantly, the Company had cited a plethora of cases in its application, where notices have been issued on NGT's institution of suo motu proceedings.
In this context the Tribunal has clarified that all the cases referred to by the Company are pending and no final decision has been taken thereon.
"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 suo motu 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," the Tribunal said.
Argument that pursuant to suo motu cognizance taken by the High Court, there was no occasion for the NGT to appoint a further Committee
The Company had argued that the Andhra Pradesh High Court hadalready taken cognizance of the incident and the State Government has 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. Thus, there was no occasion for the NGT to take cognizance of the matter.
Rejecting this argument the Tribunal noted that there is no conflict on the core issue being considered by it or by the High Court and other fora, and the Committees appointed by the various fora.
"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 this submission 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 has 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. Thus, 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 is therefore kept pending and will be listed on November 3, 2020.
In the interregnum, the following directions have been issued:
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 Raghavendra Sreyas (for Andhra Pradesh PCB); Advocate Raj Kumar (for CPCB); Advocate Satyalipsu Ray (for MoEF)
Click Here To Download Order