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DECLINING OCEAN POLLUTION DURING PANDEMIC

Ineffective legal framework has also resulted in pollution of oceans, which is affecting the environment.

Anu Bhuvanachandran

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“Base of the sea is never a desert though it’s endless”. Our earth is the combination of 70 percent of water and 30 percent of land out of which a very minimal 0.96 percentage is accumulated by the fresh ground water. It is also a well-known fact that the resources in any form available in water is almost ten times the resources in the water. With the early 1400s, man started utilizing water mode of transportation and travel across the globe. Now water mode of transport is considered as the cheapest mode of transportation and is used for bulk transport from one continent to the other. The whole system is known as the shipping or the maritime industry. This has turned to be the major export import across the globe.

There are a set of activities identified as threat to marine environment i.e., ocean dumping, land runoff, dredging, Oxides of Nitrogen and Sulphur, ocean acidification due to absorption of carbon dioxide, sea water level rising, ozone depleting substances, waste discharge from ships, oil spills and plastic pollution.

The first route cause for plastic litter in the ocean is by fishing of planktons and then followed by metal waste, sewage sludge and radioactive discharge, which were intentionally discarded to the sea. This was in the early 1900s. By 1970s, the amount of plastic litters in the oceans showed shocking hike which made international authorities to look seriously on this subject.

 Pre-Pandemic period has dealt with various issues including degradation of Maritime microscopic and macroscopic species. United Nations Environment Programme is the concerned authority for the conservation and governance of the environment at international parlance. The United Nations Economic and Social Commission for Asia and the Pacific deal with the protection and conservation of environment in Asia- Pacific Region.

Legal Framework

International Convention Relating to Intervention on the High Seas in cases of Oil Pollution Causalities 1969 and its protocol in 1973 empowered state control over maritime oil pollution. The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1975 is the first international agreement for the protection of marine environment. International Convention for Prevention of Pollution from the Ship 1973 or MARPOL exclusively deals with pollution from ships, which was modified by Protocol of 1978.

Thereafter the United Nations Convention in the Law of the sea i.e. UNCLOS was enacted to deal the marine pollution issues and allied matters in detail. Part XII and associated provisions of UNCLOS dealt the states’ responsibility towards protection of the marine environment. In 1990, International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC) provided a global legal framework in combating major incidents on marine oil pollution. In 1992, Protocol Amended the International Convention on Civil Liability for Oil Pollution imposing strict liability on the wrongdoers of oil spills in oceans. 1992, the Fund Convention was amended by the Protocol to provide compensation for oil pollution damage. In 1996, International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea was adopted by the International Maritime Organization but was never come into force. Further in 2000, Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances was enacted to enhance the scope of OPRC. The reason why I mentioned the legislative framework for protection of marine environment is to show you that how can it be so unproductive sometimes.

Changes in Pandemic

UNEP News Report dated 13th May 2020 claimed that the Ocean Pollution is decreasing as a consequence of the pandemic. In the report, it is said, “COVID 19 pandemic could help turn the tide on well-being of oceans in AsiaPacific region”. UN through its report recognizes that the temporary shut down due to the pandemic along with reduced demand for marine resources and traffic on the seas give a breathing space to recover from pollution, overfishing and impacts of the climate change.

This statement has immensely shocked me as I was on the presumption that discharge of surgical mask utilized during the pandemic would drastically increase the pollution. The statement of UNEP has made me to research on why is it so. As output there are mild and minute factors that causes major impact on marine pollution. Let’s have a look.

Travel and Tourism

There is a great decline in overall tourism and travel. Hence the instant behavior of throwing empty bottles, disposable cups and cutlery etc. to the lake, river or to sea. There is also reduction in the number of ships traversing and hence there is absence of minimal oil discharge or spills and also noise pollution; which cater wider mobility to marine species. It is a fact that the number of cruise ships traversing on sea has declined with the shooting pandemic.

Accidents at Sea

As already said, the pandemic has put down the high impulse of travel and tourism across the globe. Due to the same, traffic at the sea is minimal. Hence there is less probability of happening of the ship accidents. Ship accidents whether cargo ships or the passenger ships, often sunk due to the collision or the trauma in damage. This can further lead to oil spills, discharge of metal parts to the deep sea, mixing of contents in the ship with sea may be plastic, fiber, cloth, rug, waste, dead bodies of animals or human beings etc. and birth of harmful organisms both micro and macro from the partly degraded or fully degraded objects which affects the sustenance of marine species.

Parasites from Harbor

In many instances, ships and vessels berthed at the harbor carry local organisms which attach to the outer bottom of the ship. Ships as carriers, carry these organisms and commute to different countries where these organisms left over in the territorial waters of various countries and sometimes they multiply and kills other useful marine organisms. Different organisms may present in different harbors which is completely based on the climate, environment, salinity of water, temperature, presence of other organisms and contents in sea water such as pollutants, organic discharge etc. During the voyage the parasite organisms which is attached to the ship mingle and drops into sea water and breeds to produce more to the group. In further it attacks planktons and other microbes which actually sustain for keeping up the environment balance.

Nurdle Supply

Nurdle is a tiny pellet of plastic which is used as raw material in manufacturing plastic products across the globe. Nurdles on a bulk quantity are often shipped to different countries for manufacturing purposes on daily basis. Jace Tunnel, Director, Marine Science Institute, University of Texas in the Nurdle Survey report says “where I am in Texas, there are certain beaches that allow people to still go to as long as people stay 6 feet apart and do not gather in groups more than two people.” Also a study published in New England Journal of Medicine states “COVID 19 was detectable on plastic and stainless steel up to 72 hours and cardboard for 24 hours”. This has stepped back many people from touching and litter plastic and stainless steel at public places like beaches, lakes etc.

 Fishing

 Legal fishing has been prohibited for temporary timeframe to handle COVID 19 in many countries. Though illegal fishing is reportedly and unreported conducted, the volume fished has a drastic change. Due to the same, lot of fishes and other species including planktons which were listed as species at the verge of extinction has come out of the danger zone by breeding and life from exploitation. Though COVID 19 has allowed ocean to regenerate, there is a fear that the pandemic will affect the aquaculture activities in the country.

Disposal of Protective Measures

Due to COVID -19, the hourly basis change on of the PPE kits, masks, gloves etc. to protect from the deadly virus gives an alarm on the production of plastic waste across the globe. As already mentioned, the study published by the Medical Journal has forced many country to dispose waste like gloves, masks, PPE kits by permanent means rather that making it float into the rivers and then to the seas. This clearly points to how much waste we produce and ho we manage and mismanage it.

Natural Disasters

 Floods, landslides, earthquakes etc. draws waste including effluence, hazardous materials to the ocean. Due to lockdown and temporary shutdown of various industries in most of the countries due to pandemic, pollution as to air, water, noise etc. has come down to reasonable level. So human activities probing the natural disasters have come down due to which the probability of the happening of natural disaster have greater chances to come down. This will definitely prevent the pollution of marine environment due to natural disasters to a certain extent.

 Proof of in-effective Legal framework

I have already mentioned the various legislations at international level to regulate the activities at the sea and protect the marine environment. But the international authority United Nation openly testified drastic improvement in the marine environment in the news report, indicates the inefficiency of existing legal framework for the protection of marine environment and enforcement of existing laws. United Nations have several times in its report stated various statistics in its reports and various occasions such as conferences, summit etc. but this improvisation in the environment bags no credit to the authority as environment revamps its own in the drastic cut short of human activities. Hence the recognition by the United Nations with regard to the marine pollution clearly shows there is a need to regulate human activities to prevent pollution of marine environment. Also there is no effect or impact of existing legal framework for which they are crafted.

Concluding Remarks

Environment as such plays an inevitable role in balancing the life on earth. Environment include air, water, biological species, minerals etc. In the initial stage of pandemic where many countries declared lockdown, the first result was not seen on declining the community spread; but the declining pollution of air, water, noise and all environmental issues. News across the globe reported the presence of seals, walrus, dolphin, sea elephant, octopus, clearer Ariel view of places, fall down of smog, climatic corrections, growth of plants marked as rare and endangering and total revamping of environment itself. Nature has showed us human beings are not at all the part of it; but people are the real devastators of nature.

 Though pandemic has affected the human community in a bad shape, a clear window of opportunity is open to legislate or execute or implement to protect the marine environment and regulate activities in the sea. Post-Pandemic will be new normal so that window of opportunity as said can be effectively implemented.

 Adv. Anu Bhuvanachandran is Partner, Outsay Legal.

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Legally Speaking

TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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IN THE CIRP OF BOMBAY RAYON FASHIONS LTD, NATIONAL COMPANY APPELLATE TRIBUNAL (NCLT) STAYS THE CONSTITUTION OF COC

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The National Company Appellate Tribunal (NCLT) in the case National Company Appellate Tribunal (NCLT), comprising of the bench of Justice M. Venugopal (Judicial Member) and the technical member, Shri Kanthi Narahari observed while adjudicating an appeal filed in Prashant Agarwal v Vikash Parasprampuria, has stayed in the Corporate Insolvency Resolution Process (CIRP) the constitution of the Committee of Creditors (COC) of Bombay Rayon Fashions Ltd. on 15.06.2022, the order was passed.

FACTS OF THE CASE:

The Operational Creditor or the Respondent, Vikash Parasprampuria is the sole Proprietor of Chiranjilal Yarn Traders and the respondent had supplied goods to a public listed company i.e., Bombay Rayon Fashions Limited (“Corporate Debtor”). The Operational Creditor raised nine invoices which was accepted by the Corporate Debtor without any demur and it was noted that the dispute, protest and part payments were also made towards certain invoices.

The reminder letter was sent by the Operational Creditor when the Corporate Debtor failed to release balance payments letters followed by a Demand Notice under Section 8 of the IBC dated 05.11.2020, which was delivered to the Corporate Debtor but no response was received from the Corporate Debtor.

MUMBAI NCLT PROCEEDINGS

An application under section 9 of the Insolvency & Bankruptcy Code, 2016 was filled by the Operational Creditor before the NCLT Mumbai Bench, seeking to initiation of CIRP against the Corporate Debtor, for defaulting in payment of Rs.1,60,87,838/-, wherein the principal amount was Rs. 97,87,220/- and remaining was interest. 01.11.2020, was the default date.

the Operational Creditor placed reliance so as to justify the compliance of Rs. 1 Crore threshold for initiating CIRP of the NCLT judgement in the case Pavan Enterprises v. Gammon India, it was held in the case that interest is payable to the Operational of Financial Creditor then the debt will include interest, in terms of any agreement. However, by including the interest component the threshold of Rs. 1 Crore was being me and no reply has been filled by the Corporate Debtor.

NCLT DECISION:

An order dated 07.06.2022, the NCLT Mumbai Bench observed that the Corporate Debtor had time and again by its letter, invoices and by making part payment acknowledged its liability.

It was stated by the bench that the application under Section 9 was complete in all respects as required by law and there was a default in the payment of debt amount by the Corporate Debtor. The bench accepted the application and the CIRP was initiated against the Corporate Debtor, Mr. Santanu T Ray, Interim Resolution Professional was appointed.

NCLT PROCEEDINGS:

An application was filled by the appellant, Prashant Agarwal before the NCLT against the order dated 07.06.2022.

The settlement was proposed by the Respondent by submitting that if it would be satisfied if the Appellant pays the principal amount along with the CIRP cost towards settlement and on the settlement proposal, the appellant is yet to seek instructions.

Accordingly, the bench in the CIRP of the Corporate Debtor stayed the constitution of CoC and the CIRP process would otherwise continue.

The Appellant to accept or reject the settlement proposal of the Respondent, the bench listed the matter on 07.07.2022.

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ESTOPPEL CANNOT OVERRIDE LAW: SUPREME COURT ACCEPTS UNSUCCESSFUL CANDIDATES’ CHALLENGES TO SELECTION PROCESS HELD AGAINST REGULATIONS

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The Supreme Court in the case Krishna Rai (Dead) Through LRs versus The Benarus Hindu University & Others observed and held that the principle of estoppel or acquiescence would not be applied in a selection process when the principle of estoppel is held contrary to the relevant rules.

The bench comprising of Justices Dinesh Maheshwari and Justice Vikram Nath observed and reiterated that that the procedure in the relevant service manual will prevail over the principle of estoppel and the principle of estoppel cannot override in the eye of law.

An appeal was considered by bench relating to the filling up of 14 posts in Class III (Junior Clerk) in the Benarus Hindu University by way of promotion. However, the notification inviting the applications from Class IV employees for promotion to Class III had not prescribed that interview will be conducted in addition to the typing test. It was also stated that the The service rules also did not mention interview for promotion to Class III. However, it finalized 14 candidates, the Board of Examiners conducted an interview as well.

Before the Allahabad High Court, some of the candidates challenged the selection process by some candidates, who did not get selected. The candidates alleging that through the manual did not prescribe an interview and the Board of Examiners conducted the interview by “changing the rules of the game”. The Selection process was set aside by the Single bench of the High Court by holding that a grave error was committed by preparing the merit list on the basis of the interview as well.

on appeal by the BHU, the division bench of the High Court set aside the judgement of the Single bench on the ground that the petitioners without protest after having participated in the interview, the petitioners are estopped from challenging the selection process after becoming unsuccessful. The appellants approached the Supreme Court challenging the order of division bench.

The Court noted that the Supreme Court held that the division bench fell in error by applying the principle of estoppel. the Manual duly approved by the Executive Council, According to para 6.4, all Class-IV employees who had put in five years’ service and passed matriculation examination or equivalent, those employees were eligible for the promotion to the post of Junior Clerk Grade.

the departmental written test of simple English, Hindi, and Arithmetic, but could not pass the typing test, was passed by the eligible candidates and still the candidates would be eligible for promotion.

It was observed by the Court that the Board on their own changed the criteria and by introducing an interview it made it purely merit based and the merit list was also prepared on the basis of marks awarded in the type test, the written test and interview.

The Top Court said that it is settled principle that the principle of estoppel cannot override the law and the manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence.

The Court remarked, while referring to the precents that If the law requires something to be done in a particular manner, there can be no estoppel against law, then it must be done in that particular manner, and if it is not done in that particular manner, then in the eye of the law, it would have no existence.

It was stated that the case laws relied upon by the Division bench had no application in the facts of the present case as none of those judgments laid down states that the principle of estoppel would be above in the eye of law.

Accordingly, The judgement of the Single bench was restored and the appeal was allowed, the judgement of the division bench was set aside.

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