How effective the environmental redressal forums viz., the Appellate Authorities constituted under the Water Act and the Air Act in Kerala?

?????How effective the environmental redressal forums viz., the Appellate Authorities constituted under the Water Act and the Air Act in Kerala?

Appellate Authority means an authority appointed or authorized to?hear?appeals.

Over the last four decades, courts in India have developed a rich jurisprudence on environmental issues. The large body of environmental case-law reflects the judiciary’s predominant approach to environmental grievance redressal – directing regulatory institutions to take action against persistent violations and injustices, expanding the scope of environmental regulation and recommending special environmental adjudicatory mechanisms to make environmental justice more?accessible.

?????How effective the environmental redressal forums viz., the Appellate Authorities constituted under the Water (Prevention and Control of Pollution) Act 1974 [the Water Act] and the Air (Prevention and Control of Pollution) Act 1981 [Air Act] on two broad dimensions, ability to deliver good quality decisions and accessibility and how effective are the existing Appellate Authorities in discharging their mandate?

?????It is truly astonishing to place on record that all states in India have not constituted Appellate Authorities under the Water Act & Air Act. Second, even where the authorities have been constituted, the State Governments are not very particular about the quality of the adjudicatory process. Majority of the Appellate Authorities are not headed by District judges, but only by ex-officio appointments.

?????The Kerala Water (Prevention and Control of Pollution) Appellate Authority and the Kerala Air (Prevention and Control of Pollution) Appellate Authority are constituted as per Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (Water Act) and Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (Air Act). ?Sub Section (1) of Section 28 of Water Act States:

“Any person aggrieved by an order made by the State Board under Section 25, Section 26 or Section 27 may within thirty days from the date on which the order is communicated to him, prefer an appeal to such Authority (here in after referred to as the Appellate Authority) as the State Government may think fit to constitute.”

????Sub Section (2) of Section 28 states that the Appellate Authority shall consist of a single person or three persons as the State Government may think fit, to be appointed by State Government. Section 31 of the Air Act also contains similar provisions.

?????In exercise of the powers conferred by the above Central Acts, Government of Kerala framed the Kerala Water (Prevention and Control of Pollution) Appellate Authority Rules 1971 and Kerala Air (Prevention and Control of Pollution) Appellate Authority Rules 1999 which provide that a Judicial Officer not below the rank of a District Judge shall be appointed as Chairman of the Authority. The above Rules contain detailed provisions regarding the functioning of the Appellate Authority.

?????The Law Secretary by name was functioning as Chairman of the Water and Air Appellate Authority in Kerala. The Government in G.O(P) No.04/2016/Envt dated 17.12.2016 have reconstituted the Water Appellate Authority by appointing officers by designation with Law Secretary as?Chairman (Part time), Director,?Directorate of Environment and Climate change, Trivandrum and the Head of Environment Engineering, Government College of Engineering, Trivandrum as members (part time). The Air Appellate Authority also has been similarly reconstituted.

????The authorities as environmental grievance redressal mechanism is deciding on appeals filed by aggrieved persons against orders of the State Pollution Control Board. Effective functioning of the Appellate Authorities is in itself an important part of environmental redressal and it can positively impact access to broader environmental justice in the State.

????The Hon’ble Supreme Court while deciding a case relating to Industrial Pollution in Hyderabad (1999 (2) SCC 718) reiterated the need for Judicial and Technical Members in the Appellate Authorities.?Pursuant to this Judgment, States, such as, Karnataka, Tamil Nadu, Andhra Pradesh, Telangana and also Haryana and West Bengal have appointed Retired High Court Judges as Chairpersons of the Appellate Authorities. In Odisha, a sitting High Court Judge has been appointed as Chairman.

????The Appellate Authority offers a grievance redressal forum to scrutinize a large number of pollution cases from the point of view of affected citizens. People, especially those affected by pollution, are almost unaware of such a forum and its broad mandate. For the effective and timely dispensation of justice, a full-time officer is necessary as Chairman.

?????Law Secretary is the Head of the Law Department. On account of his manifold duties and responsibilities, he will not be able to spare any time to chair the Appellate Authority and dispose of cases. For this reason, this forum has become ineffective and inactive. Several cases are being filed before the High Court for directing speedy and time bound disposal. But it is understood that the Authority is unable to comply with such directions of the Hon’ble High Court.?Another set of cases are filed before the High Court and National Green Tribunal which are to be entertained by this Authority and those are being relegated to this Authority.

????As per the Kerala Appellate Authority Rules, a Judicial Officer not below the rank of a District Judge is to be appointed as Chairman. That being so, the appointment of Law Secretary by designation (part time) may not be legal or proper.

????In the above set of facts, there appears to be an immediate need to appoint a full time Chairman, who may be either a District Judge on deputation or a retired District Judge. However, it may be better to appoint a retired District Judge as Chairman so that the infrastructure facilities and other expenses can be reduced and if so, the Kerala Water and Air Appellate Authorities may need necessary amendment for the same.