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NATIONAL ENVIRONMENT TRIBUNAL ACT, 1995

27 of 1995

17th June, 1995

STATEMENT OF OBJECTS & REASONS The principle of strict civil liability in accident cases arising from the activities involving hazardous substances has been highlighted in a case by the Supreme Court of India. An enterprise engaged in activities with potential threat to the health and safety of the persons residing in the surrounding areas of the factory owes an absolute duty to the community to ensure that no harm is caused to any one on account of hazardous and inherently dangerous nature of such activities. Cases seeking compensation for damages to human health, property and the environment, particularly contamination of sub-surface water, are increasing. There is also an increasing trend in the number of industrial disasters. The United Nations Conference on Environment and Development held at Rio de Janeiro in June, 1992, in which India participated, has also called upon the States to develop National laws regarding liability and compensation for the victims of pollution and other environmental damage. 3. It is deemed expedient to develop and codify the principle of strict civil liability in respect of all such cases where damage is caused while handling hazardous substances. It is proposed to establish a National Environment Tribunal for effective and expeditious disposal of cases arising from certain industrial accidents and disasters with a view to providing effective and expeditious relief and compensation for damages to human health, property and the environment. 4. The Bill seeks to achieve the aforesaid objects. ACT 29 OF 1995 The Bill introduced in 1992 was passed by both the Houses of the Parliament in 1995, and received the assent of the President on 17th June, 1995 and became an Act of Parliament under the short title "THE NATIONAL ENVIRONMENT TRIBUNAL ACT, 1995 (29 OF 1995).

An Act to provide for strict liability for damages arising out of any accident occurring while handling any hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damages to persons, property and the environment and for matters connected therewith or incidental thereto. WHEREAS 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 develop national laws regarding liability and compensation for the victims of pollution and other environmental damages; AND WHEREAS it is considered expedient to implement the decisions of the aforesaid Conference so far as they relate to the protection of environment and payment of compensation for damage to persons, property and the environment while handling hazardous substances; BE it enacted by Parliament in the Forty-sixth Year of the Republic of India as follows:-

SECTION 01: SHORT TITLE AND COMMENCEMENT

(1) This Act may be called the National Environment Tribunal Act, 1995.

(2) It shall come into force on such date or dates as the Central Government may, by notification, appoint, and different dates may be appointed for different States and any reference in any provision of this Act to the commencement of this Act shall be construed in relation to any State or Part thereof as Reference to the coming into force of that provision in that States or part thereof.

SECTION 02: DEFINITIONS

-In this Act, unless the context otherwise requires,-

(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 radio-activity;

(b) "Bench" means a Bench of the Tribunal;

(d) "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;

(e) "handling", in relation to any hazardous substance, means the manufacture, processing, treatment, package, storage transportation by vehicle, use, collection, destruction, conversion, offering for sale, transfer or the like of such hazardous substance;

(f) "hazardous substance" means any substance or preparation which is defined as hazardous substance in the Environment (Protection) Act, 1986 (29 of 1986)-and exceeding such quantity as specified by the Central Government under the Public Liability Insurance Act, 1991 (6 of 1991)-;

(g) "Judicial Members" means a Member of the Tribunal appointed as such under this Act, and includes the Chairperson or a Vice-Chairperson who possesses any of the qualifications specified in sub-section (3) of section 10-;

(h) "Member" means a Member (whether Judicial or Technical) of the Tribunal and includes the Chairperson and a Vice-Chairperson.

(i) "notification" means a notification published in the Official Gazette; (j) "prescribed" means prescribed by rules made under this Act; (k) "rules" means the rules made under this Act;

(1) "Technical Member" means a Member of the Tribunal who is not a Judicial Member within the meaning of clause (g);

(m) "Tribunal" means the National Environment Tribunal established under section 8-;

(n) "Vice-Chairperson" means the Vice-Chairperson of the Tribunal.

(o) "owner" means a person who owns, or has control over handling, any hazardous substance at the time of accident and includes,-

(i) in the case, of a firm, any of its partners;

(ii) in the case of an association, any of its members; and

(iii) in the case of a company, any of its directors, managers, secretaries or

other officers who is directly in charge of, and is responsible to, the company for the conduct of the business of the company.

SECTION 03: LIABILITY TO PAY COMPENSATION IN CERTAIN CASES ON PRINCIPLE OF NO FAULT

(1) Where death of, or injury to, any person (other than a workman) or damage to any property or environment has resulted from an accident, the owner shall be liable to pay compensation for such death, injury or damage under all or any of the heads specified in the Schedule.

(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead and establish that the death injury or damage in respect of which the claim has been made was due to any wrongful act, neglect or default or any person.

(3) If the death, injury or damage caused by an accident cannot be attributed to any individual activity but is the combined or resultant effect of several such activities, operation and processes, the Tribunal may apportion the liability for compensation amongst those responsible for such activities, operations and processes on an equitable basis.

SECTION 04: APPLICATION FOR CLAIM FOR COMPENSATION

(1) An application for claim for compensation may be made-

(a) by the person who has sustained the injury;

(b) by the owner of the property to which the damage has been caused;

(d) by 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;

(e) by any representative body or organisation, functioning in the field environment and recognised in this behalf by the Central Government, under all or any of the heads specified in the Schedule; or

(f) by the Central Government or a State Government or a local authority under all or any of the heads specified in the Schedule: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, 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 respondents to the application.

(2) The Tribunal may, if it thinks fit take up the cases for claims for compensation suo motu.

(3) Any claimant making an application under sub -section (1) may also make an application before the Tribunal for such relief as is provided in the Public Liability Insurance Act, 1991 (6 of 1991): Provided that no such application shall be made if the relief has been received by the claimant earlier or an application made by the claimant to the Collector under the said Act is pending and has not been withdrawn.

(4) The Tribunal shall have, and exercise, the same jurisdiction, powers and authority n respect of the matters specified in the Public Liability Insurance Act, 1991 (6 of 1991) as the Collector has and may exercise and, for this purpose, the provisions of that Act shall have effect subject to the modification that the references therein to the Collector shall be construed as including a reference to the Tribunal.

(5) Every application under sub-section (1) shall be made to the Tribunal and shall contain such particulars and shall be accompanied by such documents and such fee, not exceeding one thousand rupees, as may be prescribed: Provided that no fee shall be payable by a person whose annual incorne is below the prescribed limit or by a representative body or organisation referred to in clause (e) of sub- section (1) or by the Central Government, a State Government or a local authority.

(6) No application for compensation shall be entertained unless it is made within five years of the occurrence of the accident.

SECTION 05: PROCEDURE AND POWERS OF TRIBUNAL

(1) On receipt of an application under sub- section (1) of section 4-, the Tribunal may, after such inquiry as it may deem fit, reject the application summarily.

(2) Where the Tribunal docs not reject the application under sub-section (1), the Tribunal may, after giving notice of the application to the owner and after giving the parties an opportunity of being heard, hold an inquiry into the claim of each of the claims and may make an award determining the amount of compensation which appears to be just and specifying the person or persons to whom such amount of compensation shall be paid.

(3) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908)-, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry.

(4) The Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 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;

(d) subject to the provisions of sections 123-and124 of the Indian Evidence Act, 1872-(1 of 1872), requisitioning any public record and document or copy of such record or document from any office;

(e) issuing commissions for the examination of witnesses or documents; (f) reviewing its decisions; (g) dismissing an application or 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; and

(i) any other matter which is to be, or may be, prescribed.

SECTION 06: CONDITIONS AS TO MAKING OF INTERIM ORDERS

-Notwithstanding anything contained in any other provision of this Act or in any other law tor the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless-

(a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made; and

(b) opportunity is given to such party to be heard in the matter:

Provided that the Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied for reasons to be recorded in writing, that it is necessary so to do for preventing any loss or damage being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order.

SECTION 07: REDUCTION OF AMOUNT OF RELIEF PAID UNDER ANY OTHER LAW

-Where in respect of death of, or injury to any person or damage to any property the owner, liable to pay compensation under this Act, is also liable to pay any amount as relief under the Public Liability Insurance Act, 1991 (6 of 1991)-or any other compensation under any other law, the amount of compensation payable under this Act shall be reduced by the amount of relief and other compensation paid under any other law.

SECTION 08: ESTABLISHMENT OF NATIONAL ENVIRONMENT TRIBUNAL

-The Central Government shall, by notification, establish a Tribunal to be known as the National Environment Tribunal, to exercise the jurisdiction, powers and authority conferred on it by or under this Act.

SECTION 09: COMPOSITION OF TRIBUNAL AND BENCHES THEREOF

(1) The Tribunal shall consist of a Chairperson-man and such number of Vice-Chairpersons, Judicial Members and Technical Members as the Central Government may deem fit and subject to the other provisions of this Act, the jurisdiction, powers and authority of the Tribunal may be exercised by Benches thereof.

(2) Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Technical Member.

(3) Notwithstanding anything contained in sub-section (1), the Chairperson-

(a) may, in addition to discharging the functions of the Judicial Member or the Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench;

(b) may transfer the Vice-Chairperson or other Member from one Bench to another Bench;

(c) may authorise the Vice-Chairperson or the Judicial Member or the Technical Member appointed to one Bench to discharge also the functions of the Vice- Chairperson or, as the case may be, the Judicial Member or the Technical Member of another Bench; and

(d) may, for the purpose of securing that any case or cases which, having regard to the nature of the questions involved, requires or require, in his opinion or under the rules made by the Central Government in this behalf, to be decided by a Bench composed of more than two Members, issue such general or special orders, as he may deem fit: Provided that every Bench constituted in pursuance of this clause shall include at least one Judicial Member and one Technical Member.

(4) Notwithstanding anything contained in the foregoing provisions of this section it shall be competent for the Chairperson or any other Member authorised by the Chairperson in this behalf to function as a Bench consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairperson may, by general or special order, specify: Provided that if at any stage of the hearing of any such case or matter, it appears to the Chairperson or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer to such Bench as the Chairperson may deem fit.

(5) Subject to the other provisions of this Act, the Benches of the Tribunal shall ordinarily sit at New Delhi (which shall be known as the principal Bench) and at such other places as the Central Government may, by notification, specify.

SECTION 10: QUALIFICATIONS FOR APPOINTMENT AS CHAIRPERSON, VICE-CHAIRPERSON OR OTHER MEMBER

(1) A person shall not be qualified for appointment as the Chairperson unless he-

(a) is, or has been, a Judge of the Supreme Court or a High Court; or

(b) has for at least two years, held the office of Vice-Chairperson.

(2) A person shall not be qualified for appointment as the Vice-Chairperson unless he-

(a) is, or has been, a Judge of a High Court; or

(b) has, forat least two years, held the post of a Secretary to the Government of

India or any other post under the Central or a State Government carrying a

scale of pay which is not less than that of a Secretary to the Government of India; or

(c)

(i) has for at least five years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; and

(ii) has adequate knowledge of, or experience in, legal, administrative, scientific or technical aspects of the problems relating to environment; or

(d) has, for at least three years, held office as a Judicial Member or a Technical Member.

(3) A person shall not be qualified for appointment as a Judicial Member unless he-

(a) is, or has been, or is qualified to be, a Judge of a High Court; or

(b) has been a member of the Indian Legal Service and has held a post in grade I of that Service for at least three years.

(4) A person shall not be qualified for appointment as a Technical Member unless he has adequate knowledge of, or experience in, or capacity to deal with, administrative, scientific or technical aspects of the problems/relating to environment.

(5) Subject to the provisions of sub-section (6) and (7) the Chairperson, Vice-Chairperson and every other Member of the Tribunal shall be appointed by the President.

(6) No appointment of a person possessing the qualifications specified in this section as the Chairperson or the Vice - Chairperson shall be made except after consultation with the Chief Justice of India.

(7) No appointment of a person as a Judicial Member or a Technical Member shall be made except on the recommendation of a Selection Committee appointed by the Central Government consisting of the following, namely:-

(a) Chairperson of the Tribunal Chair person of the Committee, ex-officio

(b) Secretary to the Government Member, ex officio of India in the Ministry of Environment and Forests;

(c) Secretary to the Government Member, ex officio of India in the Ministry of Law, Justice and Company Affairs (Department of Legal Affairs);

(d) Director-General, Council of Member, ex officio Scientific and Industrial Research;

(e) an Environmentalist to be member nominated by the Central Government member.

SECTION 11: VICE-CHAIRPERSON TO ACT AS CHAIRPERSON OR TO DISCHARGE HIS FUNCTIONS IN CERTAIN CIRCUMSTANCES

(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the Vice-Chairperson or, as the case may be, such one of the Vice-Chairpersons, as the Central Government may, by notification, authorise in this behalf, shall act as the Chairperson until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.

(2) When the Chairperson is unable to discharge his functions owing to absence, illness of any other cause, the Vice-Chairperson or, as the case may be, such one of the Vice- Chairpersons, as the Central Government may, by notification, authorise in this behalf, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.

SECTION 12: TERM OF OFFICE

-The Chairperson, Vice-Chairperson and other Member shall hold office as such for a term of five years from the date on which he enters upon his office, but shall be eligible for re-appointment for another term of five years: Provided that no Chairperson, Vice-Chairperson or other Member shall hold office as such after he has attained,-

(a) in the case of the Chairperson ; the age of seventy years;

(b) in the case of the Vice-Chairperson, the age of sixty-five years; and

SECTION 13: RESIGNATION AND REMOVAL

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