|In The National Green Tribunal||Principal Bench|
|Name Of The Case||Samir Mehta V. Union Of India|
|Date Of The Case||28 August 2016|
|O.A No.||24 Of 2011|
|Respondent||Moef &CC State Of Maharashtra Maharashtra Pollution Control Board Maharashtra Maritime Board|
|Coram||J. Swatanter Kumar J. Raghuvendra S. Rathore J. Bikram Singh Sajwan|
|Acts Involved||Environment Protection Act, 1986 Water Prevention And Control Of Pollution Act, 1974|
|Important Sections/Articles||Section 14 And 15 Of National Tribunal Act, 2010|
The environment around us is an essential part of human survival. I like to believe that people who do not care about the environment, simply do not understand how important it is to all of us and that it does not affect them directly, these are my reasons you should be concerned about the environment. Biodiversity is the key indicator of the health of an ecosystem. A wide variety of species will cope better with threats than a limited number of them in large populations. Even if certain species are affected by pollution, climate change or human activities, the ecosystem as a whole may adapt and survive. But the extinction of a species may have unforeseen impacts, sometimes snowballing into the destruction of entire ecosystems.
Improving the environmental rule of law, access to justice and environmental dispute resolution is essential for achieving the Sustainable Development Goals (SDGs), particularly SDG Goal 16—‘to provide access to justice for all and build effective, accountable and inclusive institutions at all levels’. To accomplish this goal, establishing specialised courts and tribunals dealing exclusively with environmental matters is becoming essential. All over the world, more than 1200 environmental courts and tribunals are functioning in various countries, and more such courts have been planned for the future.
As far as India is concerned, the need for establishing environmental courts in India arose in different circumstances and in different times. In the cases of M.C. Mehta Vs. Union of India (AIR 1987 SC 965), Indian Council for Enviro-Legal Action Vs. Union of India (1996 3 SCC 212) and A.P. Pollution Control Board Vs. Professor M.V. Nayudu (1992 2 SCC 718), the Indian Supreme Court (orders of 1986, 1996, 2001) observed that as environmental cases frequently involve assessment of scientific data, setting up environmental courts on a regional basis with a legally qualified judge and two experts would help speed the judicial process.
Background of the case
The NGT was established in the year 2010 under the National Green Tribunal Act of 2010 to dispose of civil cases relating to environmental protection and conservation of forests and other natural resources, including enforcement of any legal rights related to the environment (National Green Tribunal n.d.). The NGT replaced the existing National Environment Appellate Authority of the Ministry of Environment and Forest.
The tribunal, according to the NGT Act of 2010, shall have the ‘jurisdiction over all civil cases where a substantial question relating to the environment (including enforcement of any legal right relating to the environment) is involved and such question arises out of the implementation of the enactments specified in Schedule I’, namely The Water (Prevention and Control of Pollution) Act of 1974, the Water (Prevention and Control of Pollution) Cess Act of 1977, The Forest (Conservation) Act of 1980, The Air (Prevention and Control of Pollution) Act of 1981, The Environment (Protection) Act of 1986,
The Public Liability Insurance Act of 1991 and The Biological diversity Act of 2002. The NGT is a ‘quasi-judicial body’ and has limited power. It has authority similar to law-enforcement agencies, but it is not like a normal court.
Facts of the Case
On 12.08.2011 a ship (M.V. Rak Carrier) carrying more than 60054 metric tons of coal and also containing 290 tonnes of fuel oil and 50 tonnes of diesel sank approximately 20 nautical miles from the coast of South Mumbai due to water ingression in ballast tanks, which has happened due to technical faults. The coal was for Adani Enterprises Limited shipped by Delta Group International. The marine oil spill over the sea has caused environmental damage to the aquatic life and thus caused marine pollution. Adani enterprises has taken no action to control the pollution caused by the spillage whatsoever.
So, Indian Coastguard stepped in and made measures to control the damage caused and as a result significant amount of costs were incurred by the Indian Government. A petition was filed before the National Green Tribunal by Samir Mehta, an environmentalist. Samir Mehta questioned the significance of environmental jurisprudence, in relation to pollution caused by sinking of ship and oil spillage in territorial waters, contiguous zone and the Exclusive Economic Zone of the country and consequences and liabilities arising therefrom. The petition was filed under sections 14 and 15 of the National Green Tribunal Act, 2010.
- Whether the NGT Tribunal has jurisdiction to try this case, as the incident happened around 20 nautical miles from the coast of Mumbai, which is beyond the territorial waters of India that extends only up to 12 nautical miles?
- Whether the Tribunal has power to grant compensation in lieu of lawful exercise undertaken by the Government of India (Indian Coast Guard)?
- On whom the liability should be fixed; as the sender and his subsidiaries intended to play the blame game, the insurer is registered outside India and was claiming bankruptcy, the re-insurer, also a foreign entity, was not a party and the receiver (Adani) was claiming no fault theory.
- Whether sinking amounted to dumping?
Arguments of the petitioner
- The applicant has filed the application raising substantial questions relating to the environvemt and compensation commensurate to the damage done to the ecology on the facts of the present case.
- The oil spill impact commonly known as marine oil spill is a form of pollution.
- The general impact due to oil spill is that it speads in the water depending on its relative destiny and composition.
- Water currents and the wind force the oil slick to drift over large areas, impacting the open ocean, coastal areas, and marine and terrestrial habitats in the path.
- The respondents are laible for the damage caused and they are responsible to pay compensation for restitution and restoration of the ecosystem.
Arguments of the respondents
- There was no immediate effect of the oil spill on 4 August, 2011, however the Indian Coast Guard dispatched their oil pollution response ship namely ‘Samudra Prahari’ to deal with the said pollution and disaster caused thereof.
- The Respondent Board caused the coastal monitoring and collection of sea water samples at various beaches from 4/8/2011 to assess the oil content in sea water and submitted to the Central Lab for further analysis.
- It is further submitted that oil leak was observed near Juhu beach on Sunday 7 August, 2011, the |officials of the Respondent Board at Mumbai immediately visited the oil spill spread area near Juhu beach and collected the samples for analysis
- The DGS had decided to take the daily review at my incidence and held daily meetings of all concern stake holders for further necessary steps to combating the oil-spill and preventing it from spreading in the sea.
- Section 14 of the NGT Act:- The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.
- Section 15 of the NGT Act:- The relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
- Section 17(1) in The NGT Act:- Where death of, or injury to, any person (other than a workman) or damage to any property or environment has resulted from an accident or the adverse impact of an activity or operation or process, under any enactment specified in Schedule I, the person responsible shall be liable to pay such relief or compensation for such death, injury or damage, under all or any of the heads specified in Schedule II, as may be determined by the Tribunal.
The Tribunal held that it has jurisdiction to entertain the case because India’s sovereignty over the natural resources extends to contiguous zone and exclusive economic zone under Maritime Zones Act, 1976. Under this Act, the Central Government has exclusive jurisdiction to preserve and protect maritime environment in the said zones and in order to achieve this purpose, the tribunal has jurisdiction to deal with matters relating to maritime pollution in exclusive economic zones.
The Tribunal, in regard to the liability of Adani enterprises, held that according to Section 71 of the Merchant Shipping Act, 1958 even though a person is not an owner of ship but he is beneficially interested other than by way of mortgage he is liable to pay pecuniary damages. Hence, in the present case, Adani enterprises are liable to pay damages up to a tune of 5 crore rupees to Ministry of Shipping. The Court thereby reaffirmed the “Precautionary Principle” and “Polluter Pays Principle” and also recognized Right to clean environment as a fundamental right under Article 21 of the Constitution of India which guarantees protection of life and personal liberty.
The Tribunal held that the ship sinking accident is said to have led to the pollution of the marine environment on three counts:
(a) Dumping of the cargo on the ship, i.e., coal in to the sea.
(b) Release of the Fuel oil stored on board and the resultant oil spill caused by it
(c) wreckage of the ship itself, which contained the materials. In the present case, the ship used in the transport is unseaworthy and the respondents should have never used the ship for transport purpose. Therefore, in the present case, the sinking of the ship is held equivalent to dumping.
Thus, the Tribunal has finally awarded compensation to the tune of 100 crores to the Delta Group and 5 crores to the Adani Enterprises to be paid to the Ministry of Shipping under Government of India.
This judgment is a landmark one where the National Green Tribunal emphasized the need for the protection of the marine environment from damage caused due to the oil spillage, wrecks and other issues. The tribunal is tasked with providing an effective remedy in cases relating to environmental protection of the natural resources and enforcing the legal right relating to the natural properties.
Here in this case it is observed that nature or the environment leads in the utmost high and human nature is responsible for its protection. No harm should be done to the natural resources while human activity is taking place. The Tribunal took a proactive role in emphasizing the necessity of protecting the environment from degradation and made the ‘polluter pay’ for causing environmental damage.
It therefore can be said that this judgment raised the hopes of humanity in having a ‘clean environment’. Like this, the tribunal plays a very important role in creating proper concern in protecting the environment.