Upgrad LLM

the national green tribunal act, 2010 (no: 19/2010)

Advocate

1.       Source

 

a.       India is a party to the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in 1972, in which India participated, calling upon States to take appropriate steps for the protection and improvement of the human environment.

b.       Decisions were taken at the United Nations Conference on Environment and Development held at Rio de Janeiro in June 1992, in which India participated, calling upon the states to provide effective access to judicial and administrative proceedings, including redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage

c.       In the Judicial pronouncement in India , the right to healthy environment has been construed as a part of the right to life under article 21 of the constitution and

d.       It is considered expedient to implement the decisions taken at the aforesaid conferences and to have a National Green Tribunal in view of the involvement of multi- disciplinary issues relating to the environment.

 

2.       Object

 

For the effective and expeditious disposal of the cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

 

3.       Subject matter

 

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

 

4.       Time limit

 

No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose; provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

 

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days.

 

5.       Constitution

 

The tribunal shall consist of

a.       a  full time chairperson

b.       not less than ten by subject to maximum to twenty full time Judicial Members as the Central Government may, from time to time, notify;

c.       not less than ten by subject to maximum to twenty full time Expert Members as the Central Government may, from time to time, notify

The chairperson of the Tribunal may, if considered necessary, invite any one or more person having specialised knowledge and experience in a particular case before the Tribunal in that case

 

6.       Place of Tribunal

 

The central Government may, by notification, specify the ordinary place or places of sitting of the Tribunal, and the territorial Jurisdiction falling under each such place of sitting.

 

Vide Central Government Gazette notification no: 814 date 05th May, 2011, specifies Delhi as the ordinary place of sitting of the National Green Tribunal which shall exercise Jurisdiction in the whole of India.

 

Vide Central Government Gazette notification no: 1590 date 17th August, 2011, specifies the following places of sitting of the National Green Tribunal which shall exercise Jurisdiction in the area indicated against each

 

Serial number

Zone

Place of sitting

Territorial Jurisdiction

1

Northern

Delhi

(Principal Place)

Uttar Pradesh, Uttarakhand, Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir, National Capital Territory of Delhi and Union Territory of Chandigarh

2

Western

Pune

Maharashtra, Gujarat, Goa with Union Territories of Daman and Diu and Dadra and Nagar Haveli

3

Central

Bhopal

Madhya Pradesh, Rajasthan and Chhattisgarh

4

Southern

Chennai

Kerala, Tamil Nadu, Andhra Pradesh, Karnataka, Union Territories of Pondicherry and Lakshdaweep

5

Eastern

Kolkata

West Bengal, Orissa, Bihar, Jharkhand, Seven sister states of North-Eastern Region, Sikkim, Andaman and Nicobar Islands

 

 

7.       Who may approach

 

a.       a person, who has sustained the injury or

b.       the owner of the property to which the damage has been caused or

c.       where death has result from the environmental damages, by all or any of the legal representatives of the deceased; or

d.       any agent duly authorised by such person or owner of such property or all or any of the legal representatives of the deceased, as the case may be; or

e.       any person aggrieved, including any representative body or organisation; or

f.        the central government or a state government or a union territory administration or the central pollution control board or a state pollution control board or a pollution control committee or a local authority, or any environment authority constituted or established under the environment (protection) act, 1986 or any other law for the time being in force.

 

Provided that where all the legal representatives of the deceased have not joined in any such application for compensation or relief or settlement of dispute, the application shall be made on behalf of, or, for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondent to the application.

 

Provided further that the person, the owner, legal representative, agent, representative body or organisation shall not be entitle to make an application for grant of relief or compensation or settlement of dispute if such person, the owner, the legal representative, agent, representative body or organisation have preferred an appeal under section 16

 

8.       Procedures and Powers of the Tribunal

 

Procedures (Section 19 (1) to (3))

a.       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

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

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

Powers (Section 19 (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;-

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

b.       requiring the discovery and production of documents

c.       receiving evidence on affidavits

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

e.       issuing commissions for the examination of witnesses or documents

f.        reviewing its decision;

g.        dismissing an application for default or deciding it ex parte    

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

i.         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;

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

k.       any other matter which may be prescribed.

 

9.       Relief, compensation and restitution (Section 15)

 

The Tribunal may, by an order, provide

a.       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);

b.       for restitution of property damaged;

c.       for restitution of the environment for such area or areas,

as the Tribunal may think fit.

The relief and compensation and restitution of property and environment referred to in clauses above shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991.

 

No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose;

 

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days.

 

The tribunal may, having regard to the damage to the public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.

 

Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about application filed to, or as the case may be, compensation or relief received from, any other court or authority.

 

10.   Appellate Jurisdiction (Section 16)

 

The Tribunal is having the appellate jurisdiction to entertain the appeal by any person aggrieved by;-

a.       an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974;

b.       an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974;

c.       directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board section 33A of the Water (Prevention and Control of Pollution) Act, 1974;

d.       an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977;

e.       an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by State Government or other authority under section 2 of the Forest (Conservation) Act, 1980;

f.        an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981;

g.       any direction issued, on or after the commencement of the National Green Tribunal Act, 2010 under section 5 of the Environment (Protection) Act, 1986.

h.       an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986;

i.         an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986;

j.         any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010,by the National Biodiversity Authority or a state biodiversity board under the provisions of the Biological Diversity Act, 2002;

 

may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal.

 

Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days.

 

11.   Proceeding of the Tribunal (Section 19(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 Indian Penal Code and the Tribunal shall be deemed to be a civil court for the purpose of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.

 

12.   Principles to follow  (Section 20)

 

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.

13.   Time limitation for disposal

 

The application, or as the case may be, the appeal filed before the Tribunal under this act shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application, or, as the case may be, the appeal, finally within six months from the date of filing of the application, or as the case may be, the appeal, after providing the parties concerned an opportunity to be heard

 

14.   Penalty

 

Whoever, fails to comply with any order or award or decision of the Tribunal under this Act, 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, an 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.

 

15.   Non-cognizable offence

 

Every offence under this Act shall be deemed to be non cognizable within the meaning of the said code.

 

16.   Offences by companies

 

Where any offence under this Act has been committed by a company, every person, who at the time of offence was committed, was directly in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

 

17.   Execution

 

An award or order or decision of the Tribunal under this Act shall be executable by the Tribunal as a decree of a civil court, and for this purpose, the Tribunal shall have all the powers of a civil court.

 

The Tribunal may transmit any order or award made by it to a civil court having local jurisdiction and such civil court shall execute the order or award as if it were a decree may by that court.

 

 

18.   Recovery

 

Any amount, which is recoverable from any person, by an order or award or decision of the Tribunal, the same shall be recoverable from the aforesaid person as arrears of land revenue or of public demand.

 

19.   Bar of Jurisdiction

 

No civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine originally and under its appellate jurisdiction.

 

20.   Cognizance of offence

 

No court shall take cognizance of any offence under this Act except on a complaint made by-

(a)   The Central Government or any authority or officer authorised in this behalf by that Government or

(b)  Any person who has given notice of not less than sixty days in such manner as may be prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.

(c)   No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class shall try any offence punishable under this Act.

 

21.   Repeal and savings

 

The National Environment Tribunal Act, 1995 and the National Environment Appellate Authority Act, 1997 are hereby repealed.

All cases pending before the National Environment Appellate Authority established under sub-section (l) of section 3 of the National Environment Appellate Authority Act, 1997 on or before the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010, shall, on such establishment, stand transferred to the said National Green Tribunal and the National Green Tribunal shall dispose of such cases as if they were cases filed under that Act

 

 

Schedule – I

 

1.       The Water (Prevention and Control of Pollution) Act, 1974;

2.       The Water (Prevention and Control of Pollution) Cess Act, 1977;

3.       The Forest (Conservation) Act, 1980;

4.       The Air (Prevention and Control of Pollution) Act, 1981;

5.       The Environment (Protection) Act, 1986;

6.       The Public Liability Insurance Act, 1991;

7.       The Biological Diversity Act, 2002

 

Schedule – II

Heads under which compensation or relief for damage may be claimed

 

(a)   Death;

(b)  Permanent, temporary, total or partial disability or other injury or sickness;

(c)   Loss of wages due to total or partial disability  or permanent or temporary disability;

(d)  Medical expenses incurred for treatment of injuries or sickness;

(e)   Damages to private property;

(f)    Expenses incurred by the Government or any local authority in providing relief, aid and rehabilitation to the affected persons;

(g)   Expenses incurred by the Government for any administrative or legal action or to cope with any harm or damage, including compensation for environmental degradation and restoration of the quality of environment;

(h)  Loss to the Government or local authority arising out of, or connected with, the activity causing any damage;

(i)    Claims on account of any harm, damage or destruction to the fauna including milch and draught animals and aquatic fauna;

(j)    Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards;

(k)  Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-system;

(l)    Loss and destruction of any property other that private property;

(m)             Loss of business or employment or both;

(n)  Any other claim arising out of, or connected with, any activity of handling of hazardous substance.

 

 

 
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