National Green Tribunal is suddenly clearing a lot of cases. It’s, well, odd

In a written reply to the Lok Sabha last month, union minister for law and justice Kiren Rijiju revealed that the National Green Tribunal, a quasi-judicial body to adjudicate environment matters, was disposing of more cases than new applications. However, members of several NGT benches have raised concerns over the manner in which old cases are being cleared.

Of the 24 cases passed on from zonal benches and heard by special benches in July, 23 were cleared in a single hearing. Newslaundry also looked at these cases and found that several NGT benches formed committees – with officials from departments which were responsible for inaction against polluters or violators – for compliance. In many cases, the panel also left it to officials to decide the penalty, which a section of lawyers claimed should not be an administrative decision, and failed to fix accountability for inaction.

According to NGT, 3,150 cases have been cleared over the last 12 months while 2,946 new matters have been admitted in the same period with 2,077 cases pending so far. It was a “turnaround” an NGT official attributed to uninterrupted virtual hearings before and during Covid, NGT chairperson Adarsh Kumar Goel’s proactive approach, and the formation of special benches to adjudicate on pre-2017 cases.

The aim of special benches, which are a fairly new phenomenon with the first notice on such panels issued on September 6 last year, is to clear the backlog of pre-2017 cases, according to a recent notice by NGT deputy registrar Ravi Dahiya. Under this mechanism, Goel, who heads the principal bench in Delhi, decides cases to be taken up in consultation with the respective zones – in Bhopal (central), Kolkata (eastern), Pune (western) and Chennai (southern). Each zone has been allocated certain days in a week under special benches, which mostly comprise Goel, two other members from the principal bench, and a judicial and an expert member of the respective zone.

However, Newslaundry has learnt that a few members of zonal benches have expressed their displeasure over alleged encroachment on their jurisdiction by Goel. Several lawyers Newslaundry spoke to raised concerns over the manner in which special benches are disposing of old cases. In fact, the Goa bench of the Bombay High Court is also hearing a petition filed by Goa Foundation, an environment advocacy group, challenging the formation of special benches. On August 5, the petitioner informed the court that the NGT registry “has not indicated the source of power for issuance of such orders/notices (on special benches)”. The court is likely to form a bench of more than two judges to hear the petition.

Though the question whether special benches are provided for in the NGT rules will be decided by the Bombay High Court, Newslaundry analysed 24 cases heard by special benches headed by Goel in July this year. All but one were closed. In seven of them, NGT formed committees comprising officials from pollution control boards, environment department etc. which were in the first place responsible for taking action against violators, for compliance.

These cases were linked to the degradation of a Unesco hill station, road construction in water bodies, contamination of groundwater, and encroachments on a bird sanctuary, among others. At least 14 cases were closed even as NGT’s previous orders were not complied by officials and polluters. None of the 14 orders specified action taken against erring officials.

In 13 cases, special benches either formed a government committee or directed an official to take remedial measures and assess compensation and penalty. A section of lawyers objected to this, saying the penalty on officials was a judicial act and not an administrative one.

Let’s take a look at some of the cases.

Petition: Groundwater polluted by industries in Maharashtra

Zone: Western

Litigation period: 9 years

The petition alleged industrial effluent discharged from the Waluj Industrial area in Maharashtra’s Aurangabad had polluted groundwater and that government bodies had failed to take action against these factories. The industrial area houses 1,520 units, of which 316 are highly polluting.

In 2014, the NGT issued a set of directions to the Maharashtra Pollution Control Board to prevent industrial pollution and penalised 34 units. However, several directions are yet to be complied with. In 2020, the NGT hinted that non-compliance pointed to connivance between MPCB officials and industrial units. “Upon consideration of the entire records and the facts and circumstances emerging therefrom, we cannot but conclude that the MPCB has either been grossly negligent or is in connivance with the polluting industries as they have failed to take prompt action to prevent or avoid or control damage to environment as well as the health and property of the people giving rise to the principle of accountability for restoration and compensation,” it had said. “Needless to say that the State PCB will be free to recover the cost of remediation on polluter pays principle from erring industries, following due process, apart from compensation recovered earlier.” However, the order let off PCB officials.

In July, when the special bench took up the matter, it expressed its displeasure over unsatisfactory progress. “Learned counsel for the state PCB are not able to give current water quality status so as to satisfy the tribunal that situation has further improved.”

Despite its stinging remarks against officials, the tribunal disposed of the case and formed a joint committee comprising officials from MPCB, and the district and divisional administration to prepare an action plan in one month and implement it in six months. It also directed the MPCB to recover a penalty from erring industrial units, but it did not mention any action against officials for negligence.

Petition: Waste dumped in Tamil Nadu water body

Zone: Southern

Litigation period: 10 years

The petitioner alleged illegal dumping of waste in the Pallavaram Periya Eri lake in Chengalpattu district of Tamil Nadu. The NGT said that “it is seen that the violation of solid waste management rules is still continuing” and also acknowledged “damage to the water body”. “It is seen from the above narrative that in spite of repeated orders of this tribunal in the last 10 years, the situation continues to be far from satisfactory.”

The NGT formed a committee of government officials to take “stock of the situation” and complete the pending work in six months. The petition was disposed of and no official responsibility was fixed.

Petition: Oil spillage off Chennai

Zone: Western

Litigation period: 5 years

A bunch of petitions were filed in 2017 for compensation to fishermen in 21 villages and ecological restoration after a collision of two cargo ships off Ennore in Chennai caused an oil spill. Five years later, the “remediation/rehabilitation of ecological integrity” of water bodies and mangroves was yet to be achieved.

“Remediation measures which remain to be taken in terms of status report may now be expeditiously completed, utilising the amount already allocated for the purpose, in the interest of aquatic flora and fauna,” the order passed on July 5 read. The case was disposed of. “All the applications stand disposed of accordingly. If any grievance survives, it will open to the aggrieved party to take remedies afresh as per law.”

A committee with officials of the departments concerned was formed to look into the issue of non-disbursal of compensation – for fishermen identified in a 2018 high court order.

Petition: Kolkata bird sanctuary choked

Zone: Eastern

Litigation period: 6 years

The application was first filed in January 2016 and sought remedial measures to prevent discharge of untreated sewage in the Santragachi Jheel, a notified bird sanctuary in Kolkata, and removal of encroachments around the water body. In its final order, the NGT noted that the discharge of untreated sewage into the lake could not continue on account of the unresolved resettlement of encroachers. “We are of the view that on account of pendency of above dispute, municipal corporation Howrah or the railways cannot claim right to discharge untreated waste into the lake which is a criminal offence. Basic responsibility is of the corporation to prevent such discharge” and dumping of municipal waste, read the order on July 7.

It directed the civic agency to install a sewage treatment plant in four months and the railways to remove encroachments in three months. However, the order did not penalise any officials for negligence.

Petition: Industrial effluents in Hyderabad lake

Zone: Southern

Litigation period: 7 years

In the seven years of litigation, two expert committees were formed to draw up action plans; and government bodies filed affidavits on their delayed progress in cleaning up the Hussain Sagar lake and contested findings of the committees.

Calling it a matter of “serious concern”, the special bench underlined that the cultural landmark in Hyderabad was in a “bad shape” due to discharge of untreated industrial and domestic sewage. It noted that since the factual position on pollution had been established after seven years, “further action needs to be taken in the light thereof and monitored at highest level in the administration to uphold rule of law and protect environment and public health”.

Shutting the case, the NGT formed a joint committee of officials from the state urban development department, state wetland authority, Telangana state pollution control board, central pollution control board, and the civic body – the agencies responsible for checking pollution and reclamation of the lake. “The committee may meet within one month and after taking stock of the situation, prepare an updated plan which may be executed within next six months. The plan may provide for treatment of 376.5 MLD of sewage entering into Hussain Sagar”, among other measures, stated the order. Officials again went scot-free for an alleged blind eye to violations.

Petition: Road in Tamil Nadu river

Zone: Southern

Litigation period: 5 years

The application flagged road construction in the Buckhingam canal and the Kosasthalaiyar river and its tributaries by the Tamil Nadu Generation and Distribution Corporation for a thermal power station in Enore in Tamil Nadu. An expert committee report concluded that three stretches were built under the project proponent within the regulated coastal zone in 2016 and environmental clearance was granted in 2019. Two government reports also highlighted encroachments.

Based on these reports, the NGT imposed Rs 5 crore interim penalty on TANGEDCO and formed a joint committee with members from TNPCB, MoEFCC and district administration – bodies that were responsible to monitor such violations – to compute compensation against violations within three months.

The order suggested that the action plan for restoration was yet to be completed by the PCB, but the application was disposed of and no officials were pulled up for the construction. The NGT also said the TANGEDCO “may take further remedial steps…in a time bound manner which may be overseen by the State PCB”. However, it did not specify the timeline.

Petition: Degradation of Kerala hill station

Zone: Southern

Litigation period: 5 years

The case was taken up suo motu after a local newspaper published a report listing illegal activities in Munnar hills – a Unesco world natural heritage site part of the Western Ghats – in Idukki district of Kerala. The case pertained to “pollution, illegal constructions, illegal mining and other uncontrolled illegal activities adversely affecting the environment and public health”.

In its final order, the NGT noted that authorities showed “utter disregard to rule of law and constitutional rights of citizens and obligation of the state to provide pollution free environment”. An expert committee report filed on June 4 also noted that there was a huge gap in “treating sewage and industrial effluent”.

Observing that the matter was “primarily of governance”, the special bench hoped for “positive action” from state authorities – after Kerala chief secretary VP Joy appeared before the principal bench in a related matter on solid waste management rules on June 7. Notably, the principal bench, which has been monitoring compliance of the SWM rules in all states and union territories, had expressed displeasure that no adverse entries were made against erring officials and no accountability was fixed for waste management violations in Kerala’s case.

Petition: Reclamation of river in Goa

Zone: Western

Litigation period: 5 years

Observing an illegal reclamation of the Chapora river bank, the special bench pulled up the Goa Coastal Zone Management Authority for “failing to perform its responsibility in the matter of enforcing the CRZ (Coastal Regulation Zone) Notification 2011”. However, it ordered no action against erring officials and the case was disposed of.

An FIR was lodged against violators in 2016, but the reclaimed land was yet to be restored. “Accordingly, we direct the chairman, GCZMA to ensure restoration of illegal reclaimed land within two months. Environmental compensation may also be recovered for the said violations from the named parties, following due process of law,” read the order.

Petition: Water pollution in Bengaluru

Zone: Southern

Litigation period: 5 years

The petitioner alleged several environmental clearance violations – discharge of industrial effluent and building a road before approval – by polluting industries at Doddaballapura in Bengaluru Rural district.

Doddaballapura was notified as an “overexploited’ area by the central government in 2008 and 2012. This means that groundwater could be used only for drinking. On the direction of the NGT, a joint committee of the state environment impact assessment authority, state PCB and MoEFCC – who were respondents in the petition – visited the site in October 2020 and submitted its report a year later.

The panel found the Karnataka industrial areas development board had complied with almost all EC conditions except a few: building roads before approval and not filing mandatory half-yearly status reports on compliance. For road violation, the panel recommended Rs 1.5 crore in penalty. On withdrawal of groundwater, the panel said industries had got approval for 10 borewells for drinking from the ground water authority. The panel also said a plant to treat industrial effluent was not set up as the quantity was inadequate in violation of the EC condition.

The NGT seconded the panel’s view that the industries should adopt a zero liquid discharge system, which ensures no discharge of wastewater into the environment, and the application was disposed of with a new committee directed to ensure continued compliance.

Petition: Salem river pollution

Zone: Southern

Litigation period: 7 years

Much to the chagrin of the special bench, there was “no progress” in stopping the discharge of industrial effluents into the Thirumanimuthur river in Tamil Nadu’s Salem district which eventually drains into the Cauvery. “It is seen that there is continuing unchecked water pollution by discharge of untreated sewage as well as industrial effluent, showing failure of the constitutional obligation of the state and its authorities to provide pollution free environment,” it said.

It constituted a committee of officials for “coordinated action” and gave it one year to execute action plans. “Though all earlier laid down timelines by the tribunal are over, the committee must conclude execution of action plans within one year.”

The NGT, however, directed that the “committee may also ensure remedial action by the state PCB in exercise of statutory powers under the Water (Prevention and Control of Pollution) Act, 1974 against the erring industries/individuals/local bodies”.

The one that got away

Of the 24 cases heard by special benches, only one was not disposed of in July. It was related to pollution of Myntdu river in Meghalaya and illegal encroachments on its floodplains. “Even after six years of pendency of proceedings before this tribunal and several orders passed, the situation continues to be far from satisfactory. The Water (Prevention and Control of Pollution) Act, 1974 was enacted 48 years back, making pollution a serious punishable offence. Even under the provisions of the IPC enacted in 1860, water pollution is a cognizable offence,” read the July 18 order. It asked the Meghalaya chief secretary, who attended the hearing, to take “remedial action” and listed the case for September 12.

A divided courtroom

The formation of special benches has raised eyebrows among the legal fraternity on two broad issues. Do these benches have any legal legs? When does a case reach its finality; or in other words, for how long can a case be heard? “It can’t remain open forever,” remarked an environmental lawyer.

According to Siddharth Singh, who practices at NGT’s central zone and the High Court of Madhya Pradesh, the NGT chairperson, just like the Chief Justice in Supreme Court cases, is the master of the roster. Section 3(2) of the NGT (Practice and Procedure) Rules gives the chairperson the power to distribute the business of the tribunal. But this power comes with responsibility: that the chairperson has to specify such matters. “Unlike other higher courts, the chairperson does not reveal on what criteria or for which subject matters these special benches are being created. Nobody knows,” said the Bhopal-based lawyer.

Goa Foundation, an environment advocacy group which has filed a petition in the Bombay High Court against special benches, objected to notices issued by the NGT registry to form special benches, claiming it was impinging on the territorial jurisdiction of the western bench. The source of power, the petitioner claimed, for these notices was missing. However, the government argued that Section 3(2) of the Rules empowers the chairperson to do so.

Senior environment lawyer Raj Panjwani, who has assisted NGT as amicus curiae in many cases, argued that the question of jurisdiction does not arise as cases are not transferred to the principal bench from a zonal bench.

“It’s very easy to throw stones at others. Put yourself in the judge’s shoes. You will be dependent on the executive too? I will be honest. The executive is the least bothered about it (compliance),” said Panjwani. “The court’s role is to pass direction. For day-to-day monitoring, there are regulatory authorities. If there are lapses in execution, anybody can file objections in court,” he said.

On compensation calculated by government bodies, lawyer Ritwick Dutta said the penalty was not an administrative act. “NGT is telling the agencies what they were in any case required to do. No penalty is imposed on them. In many cases, it says that agencies concerned will or may impose penalty, which is a judicial act, not an administrative one. So the penalty has to be adjudicated by the NGT. Compensation and penalty can’t be outsourced to government agencies,” he said.

Gaurav Bansal, another environment lawyer, seconded Dutta. “A committee raj is prevailing in the NGT. In most cases, members of these joint committees are drawn from government agencies that are already in the dock for violations.”

In January, the Supreme Court directed the NGT not to delegate its powers to expert committees.

Rajkumar, who represents the Central Pollution Control Board in the NGT, saw nothing wrong in special benches. “If cases have been pending for so long, or pre-2017, the cause of action will be defeated. That’s where special benches have come in handy.” He said it was not possible for the NGT to appoint an expert committee for continuous monitoring in each case. “It can be done only in important cases like those related to Yamuna and Ganga rivers.”

A section of lawyers claimed that without fixing responsibility for violators and regulators, disposals will discourage petitioners to approach the tribunal. “The act says that adjudication should lead to relief, compensation, restoration and cancellation. But it seems that the NGT has outsourced its supervisory powers,” said Dutta.

On the special bench’s remarks that solid waste management compliance was related to governance, Dutta said, “Environmental pollution is a matter of governance failure, and environmental governance is the root of environmental disputes. How can NGT say that these are the issues of governance. All environmental issues are governance issues.”

A senior lawyer noted, “Committees file reports. Their words are considered sacrosanct. Lawyers are not heard and orders passed. So there is a huge mistrust between the bar and the bench. Nowadays, the NGT is just empty. Nobody goes there. But it was a blessing in disguise for me. I have started taking more cases in the high court and supreme court.”