Baghjan Blow-Out- Supreme Court Reconstitutes Committee Set Up By NGT To Assess Damages
"The presence of OIL India Ltd MD in the 10 member committee to assess the damage and restore the National Park would lead to a serious conflict of interest and affect the fairness of the process."
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In connection with the 2020 Baghjan blowout, the Supreme Court on Thursday reconstituted the committee set up by the NGT to assess the damage to and restoration of the Dibru-Saikhowa National Park and the Maguri-Motapung Wetland.The bench of Justices D. Y. Chandrachud, Vikram Nath and Hima Kohli was considering an appeal arising out of the NGT's adjudication of allegations of failure...
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In connection with the 2020 Baghjan blowout, the Supreme Court on Thursday reconstituted the committee set up by the NGT to assess the damage to and restoration of the Dibru-Saikhowa National Park and the Maguri-Motapung Wetland.
The bench of Justices D. Y. Chandrachud, Vikram Nath and Hima Kohli was considering an appeal arising out of the NGT's adjudication of allegations of failure of authorities in preventing the blowout of Baghjan 5 oil well of the Respondent-Oil India Ltd., resulting in a massive fire causing irreparable loss to the entire biodiversity of the region and loss of lives and property. "We are surprised by this order of the NGT. It is the OIL Ltd. which is responsible for the damage to the wetlands and its own Managing Director has been inducted into the committee?!", Justice Chandrachud had observed when the matter first came up on July 1.
"We are very dissatisfied with the manner the NGT has pushed the matter off its hands. It is the National Green Tribunal, it must have some alacrity and concern for the environment. We might decide it ourselves. We will hear you and reconstitute the committee- One Committee, which may be headed by a former Supreme Court judge and would comprise environmental experts. We will do that exercise here only", the judge had said.
On Thursday, when the advocate appearing for Oil India, sought to put forth certain suggestions as regards the constitution of the committee, Justice Chandrachud stated, "Why would we take your suggestions? You are the one who is responsible..."
The bench also did not entertain the objections by ASG Aman Lekhi, for the OIL, to the appointment of Justice B. P. Katakey, former judge of the Gauhati High Court, as the chairperson of the reconstituted committee.
When Senior Advocate Siddharth Mitra urged that no funds for rehabilitation of the environment have been forthcoming and that while affected human-beings could have protested and "gherao-ed" the OIL officials and claimed their compensation, "the dolphins, the flora and the fauna and the soil" cannot hold protests, Justice Chandrachud said, "That is very true"
On Thursday, the bench recorded that the issue in the appeal arises from the damage and destruction caused by a blow-out that took place from the Baghjan oilwell of the first respondent Oil India Ltd in May 2020. As a consequence of the accident, extensive damage and destruction was caused to the biodiversity of the said National Park and the biosphere reserve.
The National Green Tribunal constituted a committee of experts headed by Justice B. P. Katakey, former judge of the Gauhati High Court, by an order dated June 24, 2020. In its preliminary report of July 2020, the committee inter alia noticed the following damage: damage to publicly owned resources, the wetland, eco-sensitive zone including water bodies, air and wildlife, damage to private property of survivors in the affected villages.
Oil India Ltd. was found not to possess the mandatory consent under sections 25 and 26 of the Water Act and section 21 of the Air Act. It started drilling operation in Baghjan oilwell in 2006, and it was found that OIL does not have the requisite consent under the law to carry on testing and drilling of hydrocarbons. OIL does not have authorisation under Rule 6 of Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016, which is a violation of the conditions stipulated in the Environmental Clearance.
By subsequent progress report of October 2020, the Justice Katakey committee detailed widespread damage to the flora and fauna of the region, 35 varieties of fish species, many of which had been completely wiped out, drastically affecting oxygen and water levels, causing high mortality in marine life. The report recommended a comprehensive impact assessment along with an integrated restoration plan. When the matter was taken up by the NGT, it noted that about 9000 persons who had been displaced had been placed in camps at the cost of 11.17 crores, about 3000 families were paid an amount of Rs. 30,000 each, apart from Rs. 20 lakhs which was paid to those people whose houses were burnt. OIL accepted its liability to pay 68 crores as compensation under a tripartite agreement. Against this backdrop, the NGT did not proceed further on the issue of compensation.
The three-judge bench further recorded that in view of the gravity of the accident, which resulted in a massive fire that continued for almost 6 months, the NGT constituted three committees: a six-member committee headed by the secretary Ministry of petroleum and natural gas to affix responsibility for the failure of those involved and present at the incident and to lay down the roadmap for ensuring safety protocols; a seven-member committee to enquire into non-compliance with statutory provisions including the air act, water act, environmental protection act and hazardous waste rules as well as the requirements of the EC in terms of the notification dated September 14, 2006; a 10 member committee headed by the Chief Secretary, Assam with the managing director of OIL as one of its members to assess the damage to and restoration to the National Park and the wetland. The 10 member committee was directed to submit its report within a period of six months.
"The dispute in the present appeal relates to the third of the above committees. During the course of the hearing, on behalf of the appellant, it was submitted that there was a serious objection to the presence of the managing director of OIL. Moreover, it was submitted that in giving the time schedule of six months, the NGT had lost sight of urgency of the matter. Finally, it was also urged that the NGT has failed to direct any deposit towards the restoration of the environment, in which event, the work of restoration cannot commence immediately. Noticing these submissions, this court issued notice on July 1.
On the last date of hearing, on August 23, certain suggestions were placed before the court on behalf of the appellant with regard to the reconstitution of the committee. Many of the experts whose names are being suggested by the appellant have been associated with the work which is assigned by the NGT by constituting an expert committee in the first place. We had requested Mr KM Nataraj, ASG, to seek instructions from the MOEF on whether and if so which of the names which were proposed by the appellant would be acceptable as members of the committee. The idea was however to ensure that the work progressed with a sense of expedition so that the task of remediation can be taken up in the near future", noted the bench.
It proceeded to pass the following order on Thursday-
"We are of the considered view that the committee constituted by the NGT needs to be reconstituted. NGT has constituted a large committee consisting of 10 members. Such a large committee in the first place would find it difficult to convene at relatively short intervals, something which is necessary to ensure that the work of taking up remedial measures is taken up with all expedition. Further, the NGT has directed that the chief secretary of Assam should be the chairperson of the committee. Considering the onerous responsibility entrusted in the office of the chief secretary, we are of the view that it would not be appropriate to task the chief secretary to take up this task, which is more or less of an adjudicatory nature, combining expert domain knowledge in respect of issues pertaining to environmental concerns"
The bench continued to observe,
"We are also of the view that it is inappropriate in so far as the NGT directed the presence of the managing director of OIL as a member of the committee. The presence of the representative of OIL would lead to a serious conflict of interest and would not contribute to the fairness of the process. Undoubtedly, OIL can be heard by the committee but it cannot have its representative as a member on the committee. Consequently, it will be appropriate to direct that the committee appointed by the NGT will be substituted as follows: since Justice Katakey has already conducted a fair amount of work pursuant to the entrustment of the task by the NGT, there is no reason why the committee should not have the benefit of the work which has already been done with his expertise. The committee would comprise the former Judge of the Gauhati High Court as chairperson, and as members, the Director, Wetlands International (South Asia); an ex-deputy director, Indian Institute of Petroleum, Dehradun; a professor, Wildlife Institute of India"
"The committee is requested to take up the work at its early convenience and to endeavour to submit its report within a period of three months. It is required that the MOEF shall depute a nodal officer who shall facilitate all logistical arrangements for the committee. The committee will be at liberty to make an interim determination of the damages, with the result that a suitable direction is made for OIL to deposit the amount. The committee shall also be at liberty to issue interim remedial measures and suggest final remedial measures in the course of its report." To facilitate the work of the committee, the bench directed OIL to deposit an amount of Rs. 50 lakhs.
The bench directed that the interim report of the committee shall be submitted in a sealed cover to the registrar (judicial) of the Supreme Court, upon which the matter shall be listed within a period of one week.
Case Title: Bonani Kakkar v. OIL India Ltd. & Ors.
Also Read: Baghjan Fire Disaster: A Case Of Criminal Negligence