Assam's Baghjan Oil Well Fire: Supreme Court To Reconstitute Committee To Assess Environmental Damage & Compensation On Thursday

The Bench orally observed that it will pass an order recasting the committee on Thursday.

A Division Bench comprising Justice DY Chandrachud and Justice MR Shah was hearing a plea challenging NGT's order directing constitution of fresh committees to fix responsibility & assess the damages caused to biodiversity due to fire at Assam's Baghjan oil well.

The Committee formed has been challenged on the ground that Managing Director of OIL India, which itself is a defaulter in the present case is a member of one of the Committees.

The Bench said,

"What we propose is, petitioners have suggested names of experts, we will defer this by few days, you check their names. We can add three members out of those suggested, delete OIL India, and say that OIL will be heard by the committee but we must have some Experts in the Committee for assessment of compensation and restitution of damage done to the environment."

"We'll ask the Government of India to appoint a Nodal Officer. We can ask Justice Katakey to chair the committee and then we can have certain official representatives and some expert members." the Bench orally observed.

The Bench has asked the Petitioners to provide ASG Nataraj appearing for the Centre with a copy of the suggestions in regard to expert members who should be associated in work of assisting the damage and providing remedial compensation on account of loss caused to environment and biodiversity as a result of the mishap in the oil field.

The observations came after Senior Advocate Siddharth Mitra appearing for the appellant submitted that "To assess the damage done, we need experts, we don't need bureaucrats from different ministries as they don't have the expertise. We have given names of some experts with International experience, and some of them were already there in the Katakey Committee."

Senior Advocate Siddharth Mitra further stated that the Court had previously indicated they would consider appointing a committee consisting of experts from various fields, and in pursuance of that, the appellants have filed an affidavit suggesting names of some experts.

ASG Aman Lekhi appearing for OIL India made the following submissions to support his argument that OIL India should continue to remain on the Committee:

• The question of violation of natural Justice comes in case of a Constitutional body, this is a body with administrative functions, hence does not apply here. The question of natural justice would come when there is adjudication.

• The committee was formed for purpose of restoration, and its responsibility comes on OIL India. It's in that sense that OIL India was on the committee.

• A restoration plan has been envisaged, that restoration is the responsibility of OIL

• All the Committees be seen apart from each other; Committee that OIL India is part of is purely empirical, for assessment of damage.

"You can be heard by the committee, you cannot be on the committee! You are a defaulter." the Bench said.

"If I'm at fault and I am required to pay damages, will I be on the Board?" Justice MR Shah remarked.

"It's such a large committee for assessment of compensation, why is the managing director of OIL on the committee?" the Bench said.

Justice Chandrachud then explained the Court's stance through an example saying that if a chemical industry causes damage in a certain area due to a leak "Can we say that industry will decide what damage is to be paid? Can they be a judge in their own case!"

"We need to straight away delete OIL India from the committee and let other committees progress", the Bench orally observed.

Supreme Court had on July 1st this year directed a stay of NGT's impugned order while noting that the following arguable issues have been raised by the appellants:

• The earlier Committee had submitted a comprehensive report before the NGT. Initially, a preliminary report which was followed by a progress report and, hence, the constitution of three new Committees will only delay the process.

• For the determination of damages and compensation and for the restoration of the National Park and Wetland, a ten-member Committee has been constituted headed by the Chief Secretary, Assam in which the Managing Director of the Oil India limited has been inducted as a member.
• It has been submitted that this will be in breach of the principles of natural justice since the conduct of Oil India Limited is basically in issue and, hence, the managing Director ought not to be a member of the Committee in any case.
  

• The Committees were formed in the impugned order pursuant to a progress report filed by the original Committee on 31st October, 2020 setting out the destruction of fish species and the severe environmental impact caused by the blowout.

The National Green Tribunal, by its order dated 24 June, 2020, had constituted a Committee of Experts following the damage and the destruction caused to the biodiversity of Dibru Saikhowa National Park and Biosphere Reserve due to the blowout which took place from Baghjan 5 Oil Well on 27th May, 2020.

A preliminary report was submitted on 24th July 2020 by the Committee appointed by the NGT detailing the extent of the damage and the responsibility of Oil India Limited. A progress report was thereafter filed on 31st October 2020 setting out the destruction of fish species and the severe environmental impact caused by the blowout.

The NGT, in this backdrop, had constituted a six-member Committee to fix the responsibility for the failures of the concerned individuals present at the incident and to lay down a road map for ensuring compliance of safety protocols

A seven-member Committee to enquire into non-compliance with the statutory provisions and a ten-member Committee to assess the damage to and restoration of the National Park and Wetland and to take over all surviving issues from the earlier Committee has also been constituted.

The National Green Tribunal on June, 2020 had directed Government-owned Oil India Limited (OIL), to deposit a sum of Rs. 25 Crores with the District Magistrate, Tinsukia District, Assam, in connection to the massive fire which exploded from OIL's Baghjan well.

"In view of the prima facie case made out against OIL on the extent of damage caused to the environment and biodiversity, damage to both human and wildlife, public health and, having regard to the financial worth of the Company and the extent of damage, we direct the OIL to deposit an initial amount of ₹25 Crores with the District Magistrate, Tinsukia District, Assam and shall abide by further orders of the Tribunal," a bench comprised by Justice SP Wangdi (Judicial Member) and Siddhanta Das (Expert Member) ordered.

The bench had also constituted an eight-member Committee to look into the matter and submit its preliminary report to the Registry within 30 days.

The impugned order was passed in two original applications, moved by environmentalist Bonani Kakkar and Assam based NGO Wild Life & Environment Conservation Organisation.

Background

A massive fire broke out at Baghjan oil well of the Oil India Limited in Assam, which had been spewing gas since May 27, 2020.

Thus, invoking the Precautionary Principle and the Polluters Pay Principle under Section 20 of the NGT Act as well as the Public Trust doctrine, the applicants moved NGT seeking that the company be held accountable for causing "irreparable damage" to the community as well as the biodiversity of the Dibru Saikhowa National Park in Assam.

The released toxins were alleged to have long-term persistence in soils and sediments, due to percolation which will not only affect the current life conditions but, due to sustained release, pose a serious health risk for the longer term.

It was alleged that the fire has not only affected the Dibru-Saikhowa National Park but claimed the lives of two firefighters, destroyed species of flora and fauna and killed many Gangetic rivers.

Further, the toxins released from the incident have allegedly destroyed land and vegetation, and are hazardous to the health of the people and have affected the livelihood of those whose occupation is mainly agriculture, fishing and animal rearing.

The Applicants before NGT alleged that OIL did not have a mitigation plan for such disaster even though the Standing Committee of the National Board for Wildlife had recommended the company to provide a legal undertaking about their environmental safeguards and to specify the nature and the extent of their liability in case of accidents involving oil spillage/gas leakage into the region.

Case Title: Bonani Kakkar v. OIL India Ltd. & Ors.

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