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When Banks Pass the Blame
Two recent judgements of the National Consumer Disputes Redressal Commission (NCDRC) are eye-openers. They clearly show that, even after all these years since the Consumer Protection Act, 1986 (COPRA) came into force, life is not exactly easy for a consumer.
 
The first case involves an appeal filed before NCDRC by the State Bank of India (SBI) against one Satya Ranjan Das of...
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Maharashtra's polluting factories make its rivers filthiest in India
There was a time when Hanif S. Parkar, a fisherman from Dhabol Khadi village in the coastal district of Ratnagiri in Maharashtra, could net 25 different kinds of fish from Vashisthi, the local river.
 
For the past 25 years, factories in the neighbouring industrial belt of Lote Parshuram have been dumping untreated effluents in the river, destroying all living forms in it. The fish are dying and the river no longer offers a livelihood for Parkar and others like him in the village.
 
For the last 15 years, Parkar has been campaigning against river pollution in the area, engaging with the officials of the Maharashtra Pollution Control Board (MPCB) as well as the Maharashtra Industrial Development Corporation (MIDC) which maintains the belt.
 
Maharashtra, the state with India's biggest economy, also has the highest number of polluted river stretches in the country. And, at 161, it also has the most number of cities and towns along polluted stretches, according to a 2015 report of the Central Pollution Control Board (CPCB).
 
Of the 156 locations where the CPCB has set up its monitoring units on the 49 rivers and tributaries in the state, 153 do not meet the water quality criteria. The MPCB has issued more than 5,300 show-cause notices to erring factories between 2011 and 2017.
 
The MPCB has limited powers to discipline errant units, and hence the state has been unable to contain river pollution along its industrial zones. The board can issue notices or levy a small fine. But these measures are not strong enough to deter factories from emptying their waste into rivers.
 
The state has more than 75,000 manufacturing units that include automobile, tyre, textiles, chemicals and steel industries. Many of them are in the Pune-Chinchwad region.
 
Pune attracted 45% of the notices (2,392 of 5,276) issued to polluting factories between 2011 and 2016. This is thrice the number served to the region that attracted the second-most -- Kolhapur (673).
 
Pune also has the most polluted rivers in the state, according to a joint survey on water quality conducted in 2014 by the MPCB and The Energy and Resources Institute.
 
In 2007, the state government had drawn up a plan to develop infrastructure in the state to facilitate industrial growth. The plan included Pune, Nashik, Nagpur, Kolhapur, and Aurangabad. These regions, along with Navi Mumbai, are among the top six in the list of regions served the most notices by the MPCB.
 
Factories in the Mumbai Metropolitan Region -- comprising areas such as Mumbai, Navi Mumbai, Thane, Raigad and Kalyan -- received about 20 per cent of the notices.
 
The MPCB classifies factories on the basis of a pollution index, calculated by factoring in how much their operations pollute air and water, and generate hazardous waste. They are then classified into red, orange and green categories, red being heavily polluting.
 
Of the 5,276 notices issued by the MPCB, 65 per cent (3,445) went to factories in the red category. Orange and green categories attracted 1,599 and 232 notices, respectively.
 
A look at the list of erring companies showed that large-scale units were served with 47 per cent of the red-category notices. The rest were served to medium and small-scale industries.
 
In Kolhapur, which has the second-highest number of defaulting factories, 64 per cent of red-category notices were issued to medium and small-scale units. In Navi Mumbai -- third in the list of regions that got the most number of notices -- of the 282 factories categorised as red, 80 per cent are medium and small-scale.
 
Copies of the MPCB's directives to erring companies reveal that many factories have been discharging untreated effluents into rivers such as Warna, Sonpatra and Panchganga in Kolhapur, Ghot in Navi Mumbai, Savitri in Raigad, Godavari in Nashik and Krishna in Sangli and Satara.
 
The lax monitoring of and prosecution for water pollution in the state means that Common Effluent Treatment Plants (CETPs) routinely flout environmental guidelines on discharging untreated effluents into rivers.
 
Medium and small-scale industries depend on common plants for the mandatory treatment of their chemical waste. But the malfunctioning of even one can raise the levels of pollution caused by all the units dependent on the CETP. Currently, Maharashtra has 24 CETPs; five more are set to come up.
 
Of five CETPs in the Dombivli-Ambernath belt, four were not working, according to a March 2016 affidavit submitted by the CPCB to the National Green Tribunal (NGT). Three years before that, in 2013, the level of pollutants in treated effluent was found to be "dangerously high" at three CETPs in Pune.
 
Experts allege that the MPCB doesn't implement rules and regulations in letter and spirit. Time and again, social activists and NGOs have blamed the board for laxity in the enforcement of environmental norms.
 
IndiaSpend analysed 150-odd notices served by the MPCB to erring units and found that in many cases, multiple directives had to be issued to the same company because it simply did not respond to an earlier alert. But merely serving notices means little, said experts.
 
"Industries know they can continue doing what they want to," said Geetanjoy Sahu, an assistant professor at the Tata Institute of Social Sciences (TISS), Mumbai, who is researching on compliance and enforcement of environmental laws in India. While the MPCB has issued directives to erring units, it hadn't taken any legal action against them, he pointed out.
 
Polluting companies only needed to give an assurance to the MPCB that they would comply with the norms and pay a small fine, IndiaSpend's investigations found. But law requires that any company found polluting its surroundings ought to be penalised and directed to restore the environment within a stipulated time.
 
The Bombay High Court too had taken note of such violations in an order passed after hearing a public interest litigation (PIL) in December 2011. The high court had observed that whenever the MPCB's regional officer sought to act against the polluting units in MIDC, Mahad, the chairperson of the board would modify the closure notice.
 
The chairperson would then impose certain conditions on the company and levy a fine to let it continue its operations, the court observed. The companies in question would then continue to flout pollution control norms.
 
"That is not a satisfactory manner of dealing with the problem. The damage is being caused to the rivers by the polluting industries," the high court noted while issuing a show-cause notice to the MPCB chairperson.
 
For Maharashtra, the year 2015 began with the Bharatiya Janata Party-Shiv Sena government scrapping the 15-year-old Rivers Regulation Zone policy. This was seen as a step towards the government's bid to promote manufacturing under its "Make in Maharashtra" campaign.
 
The move enabled all industries to set up their factories near rivers, sparking fears of aggravating water pollution. Besides widespread protests and PILs, even the NGT asked the state why the decision shouldn't be considered invalid from the outset.
 
The pollution control board has a sanctioned strength of 840 employees. Of these, 275 were vacant, as on January 01, 2017. On average, 150 posts were vacant each year during the last five years, an analysis of annual reports shows. Of the 840-strong workforce, only about 350 belong to technical and scientific teams.
 
The MPCB is required by law to grant or refuse consent to the operation of new factories within 120 days of a request for permission. If the board doesn't give its verdict in this period, consents are deemed granted. As of January 2013, more than 17,500 consents had been pending for more than 120 days, according to the board's own records.
 
"This is an alarming situation. These 17,500 factories can start operations without having the mandatory environment protection guidelines from the board," said Sahu of TISS.
 
In April 2016, the NGT had directed the union environment ministry to intervene, noting that the MPCB had failed to check the discharge of untreated effluent into Ulhas river in Mumbai metropolitan region. In view of the MPBC's inability to do its job, the CPCB had requested permission to monitor Maharashtra's CETPs.
 
The treatment of liquid waste is a costly affair for any factory, more so for a chemical unit, a former senior official of the pollution control board, on condition of anonymity, told IndiaSpend. A bribe could help keep costs low, said the official.
 
As many as 1,726 industrial units in Maharashtra that are prone to polluting water have only partial facilities to treat their effluents, according to the Comptroller and Auditor General's 2011 report on the MPCB. The report said 356 units have no treatment facility at all.
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.

 

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Put a Price on Frivolous Litigation
Maybe, just maybe, the courts are listening to what Moneylife has been saying for years. That the backlog facing the judicial system stems mainly from the frivolous litigations and malicious prosecutions, rather persecutions, that are filed every day. Add to that false affidavits, perjured statements, paid, perennial and professional witnesses, forged documents, apathetic investigation and delaying tactics, and one has a goulash that is boiling over from the pot. Can this be stopped? Bet you can. 
 
You be the judge on this.
 
Ours is a free society. It must be maintained that way. Courts of law and justice must be accessible to all citizens. That, unfortunately, does include the unscrupulous.
 
The Constitution allows it. “Then change the Constitution,” was an unfortunate knee-jerk reaction, by an elder, at a seminar. Thunderous, to say the least, but in other words, “ …throw the baby out with the bath-water.” If every citizen’s voice is to be so heard, chaos would reign. Is that what we want at the end of the day? Or are there saner methods?
 
It is a fundamental right to approach a court of law. That simply cannot be taken away. It is etched in stone. It is our last key to the vast fields of freedom, our birth right, because swaraj is not only from foreign oppressors. It needs be from our own brethren, too, no matter how crooked they may be. The law is there to protect us, all of us, and it must be used responsibly, honestly and judiciously.
 
Misuse can be punished; must be punished. But, for a long time, it was not so. Harking back to Justice Cardozo’s most famous words, “All that a judge needs is honesty and courage,” these days many of our courts are coming into their own. Timidity and temerity, Denning’s fears, are being replaced by activism against trigger-happy litigants as never before. 
 
Now, let us study these decided cases. And take heart.
 
Recently, the Haryana government was involved in a not-so-earth-shattering matter of a labour dispute, something that should have been cut short years back. The Supreme Court, Chief Justice presiding, had this to say. “You (Haryana government) are destroying the judicial system. The question you are raising is already being interpreted by this Court. How many times shall we interpret for you? You are challenging the order of high court after five years and eight months in a case which is time-barred.”
 
Correctly, the Court then went on to castigate the advocate too. “You have been approaching six different judicial forums which did not have jurisdiction to try these cases and now you are before Supreme Court. Why did you not advise your client that this cannot be done?” the Court asked (emphasis ours). A dozen words that are worth more than their weight in gold - ones that should be immortalised on the front page of every law book.
 
The Court slapped fines on the Haryana government, calling it a ‘blatant misuse’ of the judicial process. “It is an appropriate case where state government wants to destroy the judicial system. It is high time that now we impose cost of Rs5 lakh on each of your petitions for filing such petitions.” Strong words. Yet, well-deserved.
 
If such an order can be applied to state governments, why not against others, especially individuals, who use the courts as if they are participating in a T-20 ‘hit-out-or-get-out’ match?
 
Criticism alone cannot work. Courts cost money to maintain. Mere calls for more judges are definitely not the only answer. They have to be appointed after due scrutiny. They must be appraised. They are not so many labourers who can be put on the job at a moment’s notice. If these appointees are not up to the mark, there will be a plethora of appeals, reversals, remands and re-trials. In short, more litigation.
 
Next will arise the need for courtrooms in new court buildings. That is expensive infrastructure. Furniture, fixtures; support staff within the courtroom (a minimum of three). Then there is security, office and maintenance personnel, computers, printers, books and journals for each courtroom, bar rooms for lawyers, canteen services for litigants and advocates, parking lots, judges’ chambers. Then there is need for libraries with years’ worth of judgements and reviews, law journals, commentaries. It is not easy to set up a court where justice will not only be done, but seen to be done. ‘More judges’ is the tip of the iceberg. But it is the one problem that the clamouring public sees and the media repeats.
 
This brings us back to square one. What is the greatest cause of delays? As things pan out, pesky litigation is definitely at the top of the list. We need to weed out trouble-makers; fine them heavily. Also, ask advocates to ascertain the intrinsic value of the matters they take up. It is already done in some types of court cases, where the advocate on record must certify the validity of the matter. More needs to be added. Advocates have already been fined for useless references, especially in cases filed by serial and perpetual litigants. Public interest litigation (PIL) is one such hunting ground.
 
 “Why not raise the court fees to deter such cases?” one may ask. It is a sword that can cut both ways. Honest but poor litigants, with genuine grievances, will be kept out; or free legal services will be overburdened. As of now, a strict and active court is the best solution for cutting through the morass of useless cases before it. And each of us, including we, as advocates, should ask ourselves this question before rushing to the courts. “Do I really have a good case? Or am I knocking on the doors just to raise hell?” If a prospective client comes with the mandate of ‘teach the other side a lesson’, we always demur. We are there to fight cases, not people. Now, fortunately, courts are teaching such litigants a lesson.
 
Then there are personal cases, as opposed to institutional ones. A man marries an underage girl. He then tires of her and moves the court for divorce, citing the marriage void ab initio, meaning ‘not legal from the beginning’. That also would mean: no alimony. He was shown the door.
 
An accident victim, Baljit Singh, says that he had undergone surgery on his fractured right arm which was fixed with screws and plates at a private hospital. He sued the doctor for negligence when the fixing came loose. He lost his case because it was not the doctor, but Baljit, who was careless, post-operation.
 
“It is evident that after the surgery, X-ray was done which showed sufficient fixation of the implant. If the screws or the plates have loosened for some reason after surgery, the doctor who conducted the surgery cannot be blamed,” the national consumer forum declared.
 
They relied on the report that said, “As per the expert committee report, the screws along with the plate had already been fixed (properly).” It accepted the report that “in order to recover, the patient is expected to comply with the advice of the doctor.”
 
In both cases, the lawyers should have been more circumspect.
 
When documents are handed over to us, we have learnt the hard way that we, as lawyers, need to verify their authenticity. Clients can mislead, too. In fact, it is best that a lawyer carefully studies a case that is brought to him and gives measured and judicious advice. Of course, crime matters are a different kettle of fish.
 
SLAPP stands for Strategic Litigation against Public Participation. In simple language it means, “Let’s shut up the other side—by filing a case in court.” Classic Goliath suing a penniless David. Do these suits add to the backlog? Definitely. Big Brother bullying small fry is very common. While every Big Brother has a right to move a court of law, should he, can he, and be allowed to, deep fry the small fish? It does not require a rocket scientist to answer that. Happily, now the courts are doing it for the aam aadmi. Jai ho!

 

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COMMENTS

Vaibhav Dhoka

6 months ago

Who is the biggest gainer in frivolous litigation?The answer is legal system.Day in and day out you see loads of affidavits in management of legal system.Who gains? Notaries.What is oath taking.It is just procedure without any ethnicity.In judiciary it is rotten system we inherited from Britishers and now Legal professionals use it to cheat public.What prompted high court justices in discharging J.Jayalalitha disproportionate asset case,whole nation doubts judiciary.It is only lip service from higher judiciary at seminars that they show concern about pilling of cases.NO ACTION.They play blame game with government.We hear and read about thousands of cases settled in Lok adalats.But never seen or heard of minimizing delay.

Pradeep Kumar M Sreedharan

6 months ago

I have lost faith in the Judicial Process and hence taken back the case from my advocate after paying 2 lacs, on a petition filed against HDFC Savings Assurance Plan, and generally against all schemes that says, if you don't object, then it is an invitation to grope.

Now, I hope to file a written argument, since my advocate wants much more, even though, my Plan has already matured by now.

I hope I may not have to loose faith in the Judiciary.

Vaibhav Dhoka

7 months ago

The legal system is truly on boiling pot to a ordinary litigant.He can never expect true and just JUSTICE from the system.If the laws were truly applied there would not have been such a backlog.The member of bar actually misguide litigants with false promises and and many times indulge in unprofessional practice.All lokadalats and other forum has failed to address the cause .

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