National Green Tribunal
Raza Ahmad vs State Of Chhatitisgarh Through ... on 3 August, 2022
Item No. 3
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Appeal No.01/2013(CZ)
Raza Ahmad Applicant(s)
Versus
State of Chhattisgarh & Ors Respondent(s)
Date of completion of hearing and reserving of order: 25.07.2022
Date of uploading of order on the website: 03.08.2022
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Mr. Mahendra Dubey, Adv
For Respondent(s) : Mr. Abhinay, Adv
Mr. Rohit Sharma, Adv
Mr. Pramod Saxena, Adv
ORDER
1. The proceedings of this appeal was remitted back to this Tribunal vide order dated 07.03.2022 passed by Hon'ble Supreme Court of India in Civil Appeal No. 2804 of 2014. The operative portion are as follows:
"The respondent, on the threshold, have raised their preliminary objections on the question of maintainability of the appeal on limitation and jurisdiction. They have raised all the contentions as narrated above.
Speaking on the jurisdiction powers and proceedings of the Tribunal, Section 14 of the NGT Act, 2010 reads as follows:
"14. Tribunal to settle disputes. - (1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified on Schedule-I. (2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose:1
Provided that the Tribunal may, if it is satisfied that the application was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days."
2. The case of the appellant in short is that the Steel Authority of India Ltd, a Government Company registered under the Companies Act, entered into a Memorandum of Understanding with the Jayprakash Associates in April, 2007 to establish a factory to manufacture cement and in pursuance of the same, M/s BJCL, respondent no. 10 herein, was established and registered under the Companies Act. An area of 34.59 acres of land belonging to the Steel Authority of India Ltd. was transferred to respondent no. 10 on 15.06.2007. Respondent no. 10 applied for Environmental Clearance and the same was granted by the Central Government on 01.05.2008 on the basis of a wrong categorization of the new unit for manufacture of 2.2 MTPA of cement as category B2 and thus exempting the project from mandatory procedure such as submission of EIA report and holding of public hearing / consultation. Whereas, the guidelines of respondent no. 2 clearly held that such a project would be category 'A'. Following the same, respondent no. 10 carried out the construction without obtaining building permission including permission for constructing high rise building from respondent no. 6 Municipal Corporation of Bhilai and made the first application for the same on 04.05.2009 after completion of the construction. Both respondent nos. 5 & 6 issued several notices to the respondent no. 10 to bring the land to the original situation or to face demolition of the structure. After several reminders, a high level committee was constituted by the respondent no. 6 which held that the permission could be granted after the land use was modified. Both respondent no. 10 BJCL and respondent no. 8 Bhilai Steel Plant (hereinafter referred to as BSP) were pressurising respondent no. 6 for conditional NOC stating that they have already approached respondent no.1, State for modification of land use and the same was under consideration in the Ministry and they 2 were confident of a positive response. The respondent no.1 State suomoto considered the case of modification of land use under Section 23 (A) of Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam Act 1973. On 22.05.2010 on the basis that use of slag, production of cement, taxes so obtained and employment generated by the respondent no. 10 constituted 'urgent public purpose'. The said proposed modification in land use was published in two circulated evening news papers without any modified development plan as stipulated. The objections were heard in Ministry office far away from the site of modification without assuring adequate participation and reasonable opportunity. Rejecting the objections regarding the issues and concerns on the environment the respondent no.2 has issued environmental clearance mechanically, relying on the basis of wrong categorisation of the project. Even the illegal construction completed prior to the modification was not considered in issuing the impugned notification.
3. The appellant raised all his objections against the proposed modification of the land use and also attended the public hearing held in Mantralaya and made oral submissions. It is surprising to note that respondent no. 10 never made any effort to obtain necessary permissions prior to beginning its construction which was done immediately after the execution of the lease deed and the permission to divert the land use from green belt to industrial purpose or for construction of high rise building was also not obtained. The project is referred to as cement grinding unit thereby giving an impression that it is a cement grinding unit. From the records available it would be clear that the proposed cement plant of 2.2 MTPA was not a standalone grinding unit nor an expansion of existing cement plant but was clearly a project of category 'A' and thus it could not be exempted from the preparation of EIA report and statutory public hearing / consultation and at no stretch of imagination it could never be categorized to category B2 project. 3
4. It is alleged that all this would be indicative not only the Environmental Clearance granted by respondent no. 2 to respondent no. 10 was on the face of it illegal but one without any application of mind. In the instant case, it was neither expansion nor modification nor change of product mix but it is infact a new unit for manufacture of 2.2 MTPA of cement. Respondent no.3, Chhattisgarh Environment Conservation Board (CECB) has also granted permission on the land of the green belt area. In so far as the modification of land use of the green belt for industrial purpose, respondent No. 5, Joint Director, Department of Town and Country Planning Bhilai issued a notice on 24.11.2009 to respondent No. 10 regarding modification of land use of the green belt area without permission and if the respondent No. 10 did not restore the land in question to its original situation within 30 days there from, action would be taken under the provisions of Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam and illegal development/construction would be removed and the cost of the same would be recovered as arrears of land revenue.
5. The respondent No. 10 issued a reply stating that the land in question belongs to respondent no. 8 BSP and the site was covered with slag and other waste products of BSP and an application for modification of land use was pending and the respondent no. 10 has not violated any law. The respondent no. 8 sent a communication to the Chief Secretary of the respondent no. 1 State on 21.01.2010 regarding modification of land that the BSP was not at all aware that the area had been declared as green belt area and it was also not taken into confidence in preparation of the Bhilai Development Plan. Alternative sites could have been made available to the respondent no. 10 without building in the green belt area which would not have been in the vicinity of the residential area and zoological parks. As for all the above, the impugned notification was issued on 03.02.2011 which was published in Chhattisgarh Gazette on 18.02.2011. After making enquiries regarding the same the appellant needed to obtain large number of documents from respondent no. 2 4 authorities to substantiate his case for which he made an application under Right to Information Act and thus, there was no delay in filing the appeal. Hence, he has sought for the reliefs.
6. The Appellant challenged the order of the Tribunal dated 02.08.2013 passed in Appeal No. 1/2013 on two points:
(i) That the environmental clearance issued by the R-2, MoEF & CC on 01.05.2008 to the Respondent No.10, M/s. Bhilai Japyee Cement Limited be quashed. This issue was finally heard and decided by this Tribunal in Appeal No. 01/2013. Hon'ble the Supreme Court of India finally disposed of the application that the challenge to the Environmental Clearance dated 01.05.2008 is barred by limitation. The point of appeal and challenging the Environmental Clearance has been finally decided and this point is not maintainable before this Tribunal.
(ii) Second point which was raised before the Hon'ble Supreme Court of India was challenged to the notification dated 03.02.2011. The challenge to the EC is barred by limitation, as noted above.
However, the challenge to the change of land use on the ground that such a change would violate a condition of the EC, is something which in the submission of Appellant would fall within the jurisdiction of NGT provided the NGT decide to exercise its discretion to condone the delay within the meaning of Section (3) read with its proviso.
7. Initially a Writ Petition (PIL) No. 5467 of 2011 was filed before the Hon'ble High Court of Chhattisgarh, Bilaspur and after hearing, the petition was transferred to this Tribunal.
8. Advancing the arguments, the Learned Counsel for the respondent no. 10 submitted that the appellant has challenged the Environmental Clearance dated 01.05.2008 issued by the respondent no. 2 and the conversion of land use from green belt to industrial purpose. Both reliefs 5 do not fall under the purview National Green Tribunal Act, 2010 or within the jurisdiction of the National Green Tribunal. It is the specific case of the appellant that the Environmental Clearance was granted by the respondent no.2 to respondent no. 10 on 01.05.2008. No appeal was filed before the NEAA under Section 11 of the NEAA Act on or before 17.10.2010 i.e. even after approximately 900 days. The NGT Act came into force on 18.10.2010. Though, the appellant has filed the Writ Petition (PIL) before the High Court of Chhattisgarh, Bilaspur only on 08.09.2011. Thus, the appellant has not availed the remedy under NEAA Act. The said Act stood repel under the NGT Act w.e.f. 18.10.2010. The general condition (B) 9.0 of the said notification dated 01.05.2008 provides that "9.0. Any appeal against this environmental clearance shall lie with the National Environment Appellate Authority, if preferred within a period of 30 days as prescribed under Section 11 of the National Environment Appellate Act, 1997."
The Tribunal is a creation of statute and the jurisdiction cannot be stretched beyond what is expressly conferred by the Act. No statutory authority, whether empowered by the Hon'ble Apex Court, can act dehoarse of the statute. Since, no appeal was filed under NEAA Act prior to 18.10.2010, it would be stated that there was no pending case to be adjudicated under Section 14 of the NGT Act, 2010, apart from that the appellant has filed PIL before the High Court of Chhattisgarh on 08.09.2011 i.e. long after the commencement of the NGT Act which came into force on 18.10.2010 and thus, it is quite clear that the appeal was barred by time and filed beyond the prescribed period of time envisaged under the NGT Act. The dispute of land use change carried out by the Government of Chhattisgarh as per the provisions Chhattisgarh Town and Country Planning Act, 1973 also do not fall under the enactments specified in the Schedule - I of the NGT Act. Under Section 14(1) of the NGT Act, the Tribunal has jurisdiction over all civil cases where a 6 substantial question relating to environment including the enforcement of any legal right relating to environment is involved and such question arising out of the implementation of the enactment specified under the Schedule - I and thus, the above dispute as to the land use falling under the provisions of the Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973 falls outside the jurisdiction of the Tribunal. The jurisdiction of the Tribunal cannot stretch the language of the statute and thus, the petitioner at no stretch of imagination can be allowed to plead that the limitation has to be reckoned from 03.02.2011 as per his own interpretation and convenience.
9. Advancing his further arguments, the Learned Counsel submitted that the environmental clearance issued by the respondent no. 2 to the respondent no. 10 on 01.05.2008 has become absolute since under Section 11 of the NEAA Act, 1997, the appeal should have been filed within 30 days of the date of the order and the authority can entertain the appeal if filed within the said period but not after 90 days from the date, if it was satisfied that the appeal was prevented by sufficient cause from filing the appeal in time. The date of communication of order or date of knowledge of order, therefore, was not relevant at all. Thus, the language of the said provision was very clear and unambiguous. In the present case, the appeal was preferred by the appellant on the ground that the date of knowledge was 03.02.2011 and thus, the appeal was within time. The same is not only misconceived but erroneous also. The NGT Act, 2010 came into force on 18.10.2010 and any order or environmental clearance granted / refused on or after coming into force of the NGT Act could be challenged before the NGT by way of an appeal under Section 16 of the NGT Act, 2010 and thus, no appeal is maintainable under Section 16 of the NGT Act also. The appellant originally filed the Writ Petition before the Hon'ble High Court of Chhattisgarh at Bilaspur wherein the respondent took a plea that the matter of change of environment is well within the domain of NGT. It is 7 pertinent to point out that the respondent took the objection on the point of limitation in that Writ Petition before the High Court. Thus, the contention put forth by the appellant side that the respondents are taking inconsistent stand that the respondent contending before the High Court that the appellant had an effective and efficacious remedy by approaching the NGT for the purpose of challenging the ground for Environmental Clearance and on transfer to the NGT, the respondent has raised the objection that it was barred by time. Since the appellant has chosen to file a Writ Petition before the High Court knowing fully well that his appeal was time barred and hence, he could not prefer an appeal before the Tribunal and hence, he filed a Writ Petition before the High Court and got an order of transfer of the same to the NGT. Thus, it would be clear that the Environmental Clearance challenged in the present case is without jurisdiction and also hopelessly barred by limitation.
10. The matter of change of land use was initiated in view of the letter dated 14.10.2009 issued by the Municipal Corporation, Bhilai and in response, the Project Proponent moved an application to the Commissioner Municipal Corporation, Bhilai requesting for conditional NOC and conversion of green belt for proper utilization of the land. After conserving the relevant facts the Government of Chhattisgarh issued a notification for suggestions and objections and the proceedings was recorded in the concerned file and after hearing the objection the Government permitted and notified the change of land use. The appellant has challenged the notification dated 03.02.2011 by which the land use was modified from green belt to industrial purpose. The said relief is outside the jurisdiction of the Tribunal as modification of the land use was done by State of Chhattisgarh, Housing and Environment Department in exercise of its powers under Section 33(A) of Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam, 1973. The said enactment is not specified in Schedule - I of NGT Act, 2010. The contentions put forth by the appellant side that he has also sought a relief for that the land should be restored to its original 8 condition as it was prior to its construction, therefore, the limitation of 5 years shall be applicable as provided in Section 15 of the NGT Act, 2010. The said argument was devoid of merits. The said limitation of 5 years would apply if somebody, despite the area being marked as green, is using for some other purpose i.e. to say that avail relief of restoration or restitution of property is independent and not based on the change to any statutory action. In the instant case, the State Government has modified the land use from green belt to industrial use by exercising its statutory powers. It is also pertinent to note that the land notified as green belt area is used for industrial purpose. If the relief is to be granted for restoration, it would become necessary to examine the validity of action of the Government in modifying the land use under the provisions of Chhattisgarh Town and Country Planning Act and the said enactment is also not included in the Schedule-I of the NGT Act, 2010. Thus, it would be quite clear that the change of use and the restitution of property would be consequential relief. When it is clear that the relief of land use cannot be granted to the appellant as it did not fall within the jurisdiction of the Tribunal then granting consequential relief would not arise. Thus, NGT would not have the jurisdiction to decide the basic question of limitation or to examine the consequential relief arising thereof. Mere transfer of the Writ Petition to the NGT, the question as to jurisdiction and limitation cannot be ignored or avoided and they have to be answered.
11. The Learned Counsel for the appellant submitted that the present appeal has been transferred from the High Court of Chhattisgarh in view of the judgment of the Hon'ble Supreme Court in the matter of Bhopal Gas Peedith Mahila Udyog Sangathan and Others wherein the Hon'ble Supreme Court directed for the transfer of all cases pending before various Courts in view of the commencement of NGT. The present appeal related to the violation of the provisions of the NEAA, 2006 though it related to the legal right to healthy and cleaner environment and the right of citizen to pollution free environment which is an integral part of Article 9 21 of the Constitution of India. The appellant has raised the issues in respect of blatant violation of law and of diversion of areas earmarked as green belt for industrial purpose and post facto change in the land use after presenting a fate accompli situation. The appellant has prayed for restoration of the area of green belt which is a principal prayer which is covered under Section 15 of the NGT Act, 2010. Respondent no. 10 has taken a diametrically opposite stand with regard to jurisdiction and limitation before the High Court and the Tribunal. The respondent, in para 27 of the reply filed before the High Court of Chhattisgarh, stated that the Writ Petition should be dismissed as the statutory and efficacious alternative remedy of filing appeal before the NGT was available to the appellant. Now, the very same respondent has taken the stand that the Tribunal has no jurisdiction to entertain the appeal and the appellant is also barred by limitation. The respondent has even put forth a submission that the matter could be transmitted back to the High Court and thus, it would be indicative of the sole confidence of the respondent to say that the matter was not to be heard on merits and the illegal activities continue unhindered. While transferring the Writ petition, the High Court observed that the basic challenge is the EC, notification regarding diversion of land the for restoration of area and transferred it to the Tribunal to decide the same and the said transfer was made since the NGT has jurisdiction to decide the present issued that too in view of the judgment passed by the Hon'ble Apex Court in case of Bhopal Gas Peedith Mahila Udyog Sangathan and Others. Firstly, to restore the leased out area of 34.59 acres to its original situation prior to the construction of the respondent no. 10. Section 15(3) of the NGT Act, 2010 provides that the limitation of filing an appeal for restitution of environment is 5 years from the date of which the cause of action first arose. The Principal Bench of the NGT has clarified the issue of limitation with respect to Section 15 of the NGT Act in Nisarga Nature Club V/s Satyawan Prabhudesai in Application No. 29/2012. The case 10 relates to a challenge to a permission granted by the Government to change the use of land from agricultural to non-agricultural and the same was challenged by way of PIL in High Court of Bombay Goa and the same was withdrawn with liberty to file before the NGT. The said order of conversion was passed in 2009 and the primary objection was raised by the respondent with respect to limitation. After hearing both sides, the Principal Bench, NGT rejected the contentions put forth by the respondent side on the point of limitation and held that the prayer for restitution of land in question would have to be considered.
12. The contention raised by the learned counsel for the parties were heard and discussed in the order dated 02.08.2013 which are as follows:
13.Further, the Learned Counsel with vigour and vehemence added that the present appeal relates not just to Environmental Clearance but also to the notifications dated 03.02.2011 modifying certain parcels of land designated as green belt to industrial purposes. The present appeal seeks restoration of the green belt which is covered under provisions of the NGT Act. The Schedule - II of the Act specifically states that the compensation and relief should be sought for any harm, damages or destruction to flora including aquatic flora, crops, vegetables, trees and orchards. Further Clause (k) deals with restoration on account of harm, damage to environment including pollution of soil, air, water, land or ecosystem. Thus, the principal prayer of appellant is restoration of the green belt so that legal and fundamental rights of the citizens to a clean and healthy environment under Section 21 of the Constitution is protected. The people residing in the vicinity of the plant are already impacted due to pollution. An area earmarked to reduce and absorb the pollution i.e. the green belt has now turned out to be the source of pollution due to the setting up the cement plant. The appellant should succeed in securing an order for restoration by proving that the conversion was illegal and improper and the environmental clearance is a key document to show the illegality as well as the process adopted in security approval for cement plant in violation of the law. Thus, the environmental clearance as well as the notification for change in land use has to be considered while deciding the issue of restoration of the green belt. Therefore, the contention put forth by the respondent are devoid of merit and have got to be rejected and the appeal has got to be heard on merits since it is within time and jurisdiction of the Tribunal.
14. In order to support his contentions, Learned Counsel relied on following cases :
(i) Bhopal Gas Peedith Mahila Udyog Sangathan and Others
(ii) Nisarga Nature Club v/s Satyavan Prabhudesai (Application No. 29/2012) [National Green Tribunal (PB), New Delhi].
(iii) Collector, Land Acquisition V/s Katiji[1987 AIR 1353, 1987 SCR(a) 387].11
(iv) Improvement Trust Ludhiana V/s Ujagar Singh and Others [2010 (6) SCC 786].
(v) N.Balakrishna V/s M.Krishnamurthy [2008 (228) ELT 162 (SC)].
15. The Tribunal paid its anxious consideration on the submissions made and looked into all the material available.
16. Admittedly, the appellant herein original filed Writ Petition (PIL 5467/2011 on the file of the High Court of Chhattisgarh, Bilaspur whereby an order of transfer dated 28.01.2013 was made pointing to the observations made by the Hon'ble Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan and Others Vs. Union of India & Others (2012) 8 SCC 326 and also observing that the question of environmental clearance may be gone into by the National Green Tribunal. In pursuance of the said order of transfer, this appeal was taken on file.
17.In that writ petition, the reliefs sought for are as follows:
(a) That the notification No. F/7-24/32/2010 dated 03.02.2011 modifying land use of certain parcels of land designated in the Development Plan of Bhilai as "green belt" to "industrial purpose" be quashed.
(b) That the Environmental Clearance issued by the Respondent No. 2 Ministry of Environment and Forest on 01.05.2008 to the Respondent No. 10 BJCL be quashed as, on the very face of it, it has wrongly categorized the project as Category B2 instead of Category A, and was therefore issued without following mandatory procedures. Concealment of material facts, use of fraud and fabricated documents, and causing environmental damage in violation of explicit conditions imposed, including initiating a review of environment clearance granted to the Company by the Respondent No. 3 CPCB.
(c) That the 34.59 acres of land designated as "green belt" leased out to the Respondent No. 10 BJCL be restored to its original situation prior to the construction of the Respondent No. 10 BJCL.
(d) That any other order may be deem fit under the facts and circumstances of the case also be granted by the Hon'ble Court.
18.As can be seen from the averments made in the original writ petition, the chronological list of events stood as follows :
Date Particulars
April 2007 Memorandum of Understanding between SAIL and Jay
Prakash Associates.
15.06.2007 Respondent No. 7 SAIL transferred 34.59 acres of land to Respondent No.10 M/s BJCL.
01.05.2008 Environmental Clearance was granted to Respondent No. 10 BJCL by Respondent No. 2 MoEF.
04.05.2009 Respondent No. 10 applied for building permission to the Municipal Corporation Respondent No. 6.
22.05.2009 Proposed modification was published in the local newspapers.
12 24.11.2009 Respondent No. 5 Jt. Director Town and Country Planning Bhilai issued notice to Respondent No.10 regarding land use modification without permission and restoration of the land.
21.01.2010 Respondent No. 8 wrote to State informing that they were not aware of green belt and regarding their non-
participation in Bhilai Development Plan.
18.10.2010 NGT Act, 2010 came into effect.
03.02.2011 Impugned notification issued by the Respondent No. 1 State of Chhattisgarh.
18.02.2011 Gazette notification of impugned notification. 08.09.2011 Writ Petition (PIL) No. 5467/2011 was filed by the appellant before the High Court of Chhattisgarh at Bilaspur.
28.01.2013 The Writ Petition (PIL) 5467/2011 was transferred to the NGT (PB), New Delhi by the High Court of Chhattisgarh at Bilaspur.
19.The respondent, on the threshold, have raised their preliminary objections on the question of maintainability of the appeal on limitation and jurisdiction. They have raised all the contentions as narrated above.
20.Speaking on the jurisdiction powers and proceedings of the Tribunal, Section 14 of the NGT Act, 2010 reads as follows:
"14. Tribunal to settle disputes. - (1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified on Schedule-I. (2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the application was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days."
21.From the very reading, it would be quite clear that the Tribunal has jurisdiction over all civil cases only where a substantial question relating to the environment including enforcement of any legal right related to environment is involved and also the said substantial question should also arise out of the implementation and is included in one of the seven enactments specified under the Schedule - I. Even, if the applicant is able to satisfy the above requisites, the Tribunal can adjudicate the disputes only if it is made within a period of six months from the date on which the cause of action in such dispute first arose and the Tribunal for sufficient cause can condone the delay for a period not exceeding 60 days in making the application.
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22.Admittedly, in the instant case, the environmental clearance was granted to respondent no. 10 by respondent no. 2 MOEF on 01.05.2008. The same was also published in the newspapers on 08.05.2008. The appellant has clearly averred that he came to know about the environmental clearance from the newspaper dated 08.05.2008. Thus, it would be clearly indicative of the fact of the knowledge of the appellant on 08.05.2008. The NGT Act came into force only on 18.10.2010. The appellant has not preferred any appeal against the environmental clearance under Section 11 of the NEAA Act within the period of 90 days as stipulated under that Act including the condonement of delay period. But the appellant has chosen to file Writ Petition before the High Court of Chhattisgarh at Bilaspur only on 08.09.2011 i.e. nearly about after lapse of 01 year from the commencement of NGT Act. Though, a remedy was available under Section 11 of the NEAA Act, the appellant has not availed that remedy. The NEAA stood repealled under the NGT Act, 2010 w.e.f. 18.10.2010. A party cannot rely upon the provisions of the repealed statute after it has been repealed. If a right has been accrued under the repealed enactment, it cannot be disturbed. Even then, if any new or further step was needed to be taken under the Act that cannot be taken even if the Act is repealed.
23.The Hon'ble Apex Court in 1980 1 SCC 149 has dealt as follows "The distinction between what is and what is not a right preserved by the provision of Section 6 of the General Clauses Act is often one of great fineness. What is unaffected by the repeat of a statute is a right acquired or accrued under it and not a mere 'hope or expectation of', or liberty to apply for, acquiring a right. In Director of Public Works v. Ho Po Sang Lord Morris speaking for the Privy Council, observed:
"It may be, therefore, that under some repealed enactment, a right has been given but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should be or should not be given. On repeal, the former is preserved by the interpretation Act. The latter is not."
24.A reading of the above would clearly indicate the right of appeal granted under the repealing Act as could be seen of the NGT Act, it was restricted only to the orders that were passed on or after 18.10.2010 and also taking up for consideration the appeal which were filed before NEAA on or before 17.10.2010. As rightly pointed out by the Learned Counsel for the respondent, the Tribunal is only a creature of the statute and could not stretch its jurisdiction what is expressly conferred by the Act and no statutory authority whether empowered by the Hon'ble Supreme Court can act or otherwise dehoarse of the statute. In the instant case, the repealed act cannot be relied upon by the appellant. If the appellant has acquired anything under the repealed enactment, it cannot be disturbed but it is not so in the instant case. If the appellant has acquired any right, the same would be protected by applying the provision of Section 6(c) of the General Clauses Act but that is not so in the instant case. In the instant case, the environmental clearance was granted on 01.05.2008 but no appeal was preferred before 18.10.2010 under NEAA Act and hence, it cannot be stated as a pending case to be decided under Section 38(5) of the NGT Act. As seen above, the appellant cannot rely upon Section 16 of 14 the NGT Act General Clause to expand the portion of Section 16 of 38(5) of the NGT Act beyond the plain language.
25.As in any civil case, to initiate proceedings and to seek relief before the Tribunal, as envisaged under the provisions of NGT Act, one should have the cause of action which consisting of bundle of facts which gives the affected party a right to claim relief. The expression generally means the situation or a set of acts that entitles a party to maintain an action in a Court or a Tribunal.
(e) Black's Law Dictionary defines Cause of Action as : "Cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment.
(f) In "Words and Phrases", the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf.
(g) As per Halsbury Laws of England (Fourth Edition) "Cause of action"
has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action" has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action.
(h) It is judicially settled that the cause of action, in the restricted sense, means forming the infraction of the right or the immediate occasion for the action and in the wider sense, the necessary conditions for the maintenance of the proceedings not only the alleged infraction but also the infractions coupled with the right itself.
26.It would be apt and appropriate to reproduce the following observation made by the Principal Bench, NGT, New Delhi in Appeal No.01 of 2013 Ms. Medha Patkar & Others Vs. Ministry of Environment & Forest, Union of India & Others on the point of limitation :
"The Tribunal must adopt a pragmatic and practical approach that would also be in consonance with the provisions of the Act providing limitation. Firstly, the limitation would never begin to run and no act would determine when such limitation would stop running as any one of the stakeholders may not satisfy or comply with all its obligations prescribed under the Act. To conclude that it is only when all the stakeholders had completed in entirety their respective obligations under the respective provisions, read with the notification of 2006, then alone the period of limitation shall begin to run, would be an interpretation which will frustrate the very object of the Act and would also cause serious prejudice to all concerned. Firstly, the completely frustrates the purpose of prescription of limitation. Secondly, a project proponent who has obtained environmental clearance and thereafter spent crores of rupees on establishment and operation of the project, would be 15 exposed to uncertainty, dander of unnecessary litigation and even the possibility of jeopardizing the interest of his project after years have lapsed. This cannot be the intent of law. The framers of law have enacted the provisions of limitation with a clear intention of specifying the period within which an aggrieved person can invoke the jurisdiction of this Tribunal. It is a settled rule of law that once the law provides for limitation, then it must operate meaningfully and with its rigour. Equally true is that once the period of limitation starts running, then it does not stop. An applicant may be entitled to condonation or exclusion of period of limitation. Discharge of one set of obligations in its entirety by any stakeholder would trigger the period of limitation which then would not stop running and equally cannot be frustrated by mere non- compliance of its obligation to communicate or place the order in public domain by another stakeholder. The purpose of providing a limitation is not only to fix the time within which a party must approach the Tribunal but is also intended to bring finality to the orders passed on one hand and preventing endless litigation on the other. Thus both these purposes can be achieved by a proper interpretation of these provisions. A communication will be complete once the order granting environmental clearance is place in public domain by all the modes referred to by all or any of the stakeholders. The legislature in its wisdom has, under the provisions of the Act or in the notification of 2006, not provided any other indicator or language that could be the precept for the Tribunal to take any other view."
13. Learned counsel for the Respondent had submitted that the Appellant has filed the PIL and this petition on a frivolous and malafide grounds and this type of PIL or litigation has been highly deprecated by the Tribunal.
14. Reliance is placed on Vijay Singh vs Balaji Grit Udyog & Ors.
[MANU/GT/0036/2014] wherein the Hon'ble NGT, Principal Bench imposed a cost of Rs. 50,000/- on a busybody masquerading as a public-spirited litigant. The Hon'ble NGT relied on several judgments of various courts including Supreme Court and depricated filing of petitions by individuals for settling personal scores in the following terms:
"42. Again taking serious note of the filing of Public Interest Litigation by individuals for settling their personal scores the Hon'ble Apex Court in P. Seshadri v. S. Mangati Gopal Reddy and Ors. MANU/SC/0263/2011 : (2011) 5 SCC 484 has observed in the following paragraphs:
18. The High Court has committed a serious error in permitting Respondent 1 to pursue the writ petition as a public interest 16 litigation. The parameters within which public interest litigation can be entertained by this court and the High Court, have been laid down and reiterated by this Court in a series of cases. By now it ought to be plain and obvious that this Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals i.e. busybodies, having little or no interest in the proceedings. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard. Otherwise the petition is liable to be dismissed at the threshold.
22. Similar observations had been made by this Court in Ashok Kumar Pandey v. State of W.B. We may reiterate here the observations made in SCC para 12 herein, which are as follows:
(SCC p. 357)
12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, the Court must be careful to see that a body of persons or a member of the public, who approaches the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives.
Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases, with exemplary costs.
43. The concept of public interest litigation was discussed in depth by the Hon'ble Apex Court by holding that a petition styled as Public Interest Litigation which is a camouflage to foster the personal disputes is to be thrown out. It was Hon'ble Dr. Arijit Pasayat and P. Sathasivam, JJ in Holicow Pictures Private Limited v. Premchandra Mishra and Ors. reported in MANU/SC/8219/2007 : (2007) 14 SCC 281 the observation was made as follows:
10. In para 98 of the said judgment, it has further been pointed out as follows: (SCC pp. 345-46) 98. While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that courts should not allow its process to be abused by a mere busybody or a meddlesome interloper or wayfarer 17 or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.
....
12 . It is depressing to note that on account of such trumpery proceedings initiated before the courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express out opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters-government or private, persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenu expecting their release from the detention orders, etc. are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity, break the queue muffing their faces by wearing the mask of public interest litigation and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the courts never moves, which piquant situation creates frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.
....
15. The court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. The court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in 18 the name of pro bono public, though they have no interest of the public or even of their own to protect.
....
18. In S.P. Gupta v. Union of India it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the court under the guise of a public interest litigant. He has also left the following note of caution: (SCC p. 219, para 24) 24. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective.
15. Though the question of public hearing has been raised by the learned counsel for the appellant, but nothing has been shown to cause prejudice whatsoever to the appellant and the respondent has relied on 2021 SCC Online SC (7) Supreme Court of India in Rajeev Suri vs. Delhi Development Authority & Anr. The relevant paragraphs are as under:
342. Thus, no case of prejudice whatsoever has been made out by the petitioners in the process of public consultation. It is well settled that principles of natural justice are not an unruly horse. It would be an empty formality to permit large number of persons to raise same 13 objections multiple times. An attempt was made to impress upon us that due to pandemic situation most of the objectors were unable to remain present on the specified day and time for hearing. As aforesaid, none of the petitioners have invited our attention to any objection taken by them in writing which was different than the 13 points/questions noted by the Authority which were common in all the objections received by it. Hence, even this plea raised by the petitioners is of no avail. In other words, though the petitioners have vehemently argued about denial of natural justice, the same has not been demonstrated sufficiently to meet the basic standards of judicial conscience so as to warrant our interference.
343. Indeed, principles of natural justice infuse life and blood into legal processes both judicial and administrative. However, the occasion of their application is not uniform and it cannot be stated as a proposition of blanket application that all administrative exercises are subject to unalterable and absolute standards of natural justice. In Kailash Chandra Ahuja , this Court in para 36, observed thus:-- "36. ... Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant."19
344. In Canara Bank,(2020 SCC Online Del-459), this Court highlighted the fundamental premise of natural justice and observed thus:--
"9. The expressions "natural justice" and "legal justice" do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants' defence."
345. Reference could also be had to State Bank of Patiala v. S.K. Sharma (1996) 3 SCC, 364 wherein this Court had noted thus: "32. ... Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise."
346. In Karnataka State Road Transport Corporation , this Court observed thus:
"24. ....The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality...."
(emphasis supplied)
347. In Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions v. Pindiga Sridhar, (2007) 13 SCC 352, the Court reiterated the settled position and observed thus: "7. ...By now, it is well settled principle of law that the principles of natural justice cannot be applied in a straitjacket formula. Their application depends upon the facts and circumstances of each case.
To sustain the complaint of the violation of principles of natural justice one must establish that he was prejudiced for nonobservance of the principles of natural justice ..."
348. In Jagjit Singh , this Court had observed that:
"44. ... However, the principles of natural justice cannot be placed in a straitjacket. These are flexible rules. Their applicability is determined on the facts of each case."
349. Further, in Chairman, Board of Mining Examination, the Court was more categorical in its approach and observed thus:
"13. ... Natural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of 20 such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. ..."
350. In short, the petitioners have not been able to demonstrate any case of denial of natural justice. For, the prescribed procedure, both by statute and convention, seems to have substantially been followed. In fact, in circumstances when challenge is raised to a project of immense national importance which is not limited to any particular city or state or intended to give benefit to any private individual, impediments cannot be induced by reading in requirements which are not mandated by law. The principle of "Rule of Law" requires rule in accordance with the law as it is, and not in accordance with an individual's subjective understanding of law. Substantial justice is the core of any such inquiry and it is in this direction that processes are to be understood and adjudicated upon. The Court needs to be conscious of all aspects in a non-adversarial public interest litigation where public interest is the sole premise of enquiry.
16. The matter of issue of environment clearance and change of land use was duly considered by the administrative authorities according to the rules and they have passed a reasonable reasoned order. Even if it is a interpreted that it is not a reasoned order learned counsel for the Respondent had submitted that every administrative authority is not under any legal obligation to record reasons for its decision, although it is always desirable to record reasons to avoid any suspension. He has relied on following paragraphs of Hon'ble the Supreme Court of India as follows (2021) SCC Online SC-7:
382. In cases when the statute itself provides for an express requirement of a reasoned order, it is understandable that absence of reasons would be a violation of a legal requirement and thus, illegal. However, in cases when there is no express requirement of reasons, the ulterior effect of absence of reasons on the final decision cannot be sealed in a straightjacketed manner. Such cases need to be examined from a broad perspective in the light of overall circumstances. The Court would look at the nature of decision-
making body, nature of rights involved, stakeholders, form and substance of the decision etc. The list is not exhaustive for the simple reason that drawing a conclusion of non-application of mind from mere absence of reasons is a matter of pure inference and the same cannot be drawn until and unless other circumstances too point in the same direction. The aforesaid factor of nature of rights has been considered by this Court in E.G. Nambudiri thus (2006) 10 SCC 645: 21
"8. The question is whether principles of natural justice require an administrative authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for its decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given for decisions. See : Regina v. Gaming Board for Great Britain, ex p. Benaim and Khaida, [1990] 2 Q.B. 417 at 431.
..."
(emphasis supplied)
383. It is settled that in cases where individual rights are affected by the decision, an opportunity of being heard and application of mind couched in the form of reasons form part of the jurisprudential doctrine. Such cases need to be distinguished from cases which do not impinge upon individual rights and involve ordinary administrative processes. For, similar standards cannot be deployed to decide both these cases. When petitioners allege illegality on a ground such as absence of reasons in a pure administrative process, they must bear the burden to demonstrate the requirement of reasons in the first place. It is not as if reasons are mandatory in all decisions. What we are dealing with is the opinion of an advisory (administrative) body which is appointed by the same Government which calls for its advice and not to adjudicate upon rights of individuals. Even if we assume that the no objection by an advisory body would have the effect of affecting the objectivity of the final decision, the fact remains that it does not take the final decision. It is meant to invoke its expertise in light of the subject proposal placed before it and advise the Government as regards the feasibility of the proposed development in connection with the existing central vista region. The final decision would be that of the competent authority of the concerned department. Furthermore, what purpose would it serve to entangle an advisory body into rigidity of recording elaborate reasons when its advice is not going to affect any stakeholder whatsoever nor can be made the basis to challenge the final decision of the competent authority. Not being a statutory body, its opinion has no finality attached to it nor could be appealed against to superior forum. Undeniably, in the process of decision- 22 making, the Government may choose to consult as many bodies and agencies as it desires and opinion of every such advisory body cannot be assailed by supplying fictional standards without keeping in view the nature of body and context of advice.
384. In E.G. Nambudiri , this Court noted as to how mere absence of reasons may not render the decision to be illegal thus:
"6. ... Ordinarily, courts and tribunals, adjudicating rights of parties, are required to act judicially and to record reasons. Where an administrative authority is required to act judicially it is also under an obligation to record reasons. But every administrative authority is not under any legal obligation to record reasons for its decision, although, it is always desirable to record reasons to avoid any suspicion. Where a statute requires an authority though acting administratively to record reasons, it is mandatory for the authority to pass speaking orders and in the absence of reasons the order would be rendered illegal. But in the absence of any statutory or administrative requirement to record reasons, the order of the administrative authority is not rendered illegal for absence of reasons. If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide, it is always open to the authority concerned to place reasons before the court which may have persuaded it to pass the orders. ..."
(emphasis supplied)
385. Had it been a case of any other administrative committee required to adjudicate upon the rights of individuals, merely because it is not mandatory to record reasons would not absolve it of the requirement of objective consideration of the proposal. The ultimate enquiry is of application of mind and a reasoned order is merely one element in this enquiry. In a given case, the Court can still advert to other elements of the decision-making process to weigh the factum of application of mind. The test to be applied in such a case would be of a reasonable link between the material placed before the decision-making body and the conclusion reached in consideration thereof. The Court may decide in the context of overall circumstances of the case and a sole element (of no reasons or lack of elaborate reasons) cannot be enough to make or break the decision as long as judicial mind is convinced of substantial application of mind from other circumstances. Even in common law jurisprudence, there is no absolute requirement of reasoned order in all decisions. In Lonrho plc v. Secretary of State for Trade and Industry, it was contended that the decision is not based on convincing reasons and therefore, must be declared as illegal. The House of Lords refused to entertain this contention and noted that mere absence of reasons would not render the decision as irrational. Lord Keith, in his opinion, noted that the only significance of absence of reasons would be that if circumstances overwhelmingly point towards a different conclusion that the one reached by the body, it would be fatal. He noted thus:
"The absence of reasons for a decision where there is no duty to give them cannot of itself provide any support for the suggested irrationality of the decision. The only significance of the absence of 23 reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker who has given no reasons cannot complain if the court draws the inference that he had no rational reason for his decision."
386. In Administrative Law, P.P. Craig notes that it is relevant to consider the context in which decision operates thus:
"The court will consider the nature of the decision maker, the context in which it operates and whether the provision of reasons is required on grounds of fairness."
387. Mr. Craig also refers to R. v. Ministry of Defence, Ex p. Murray (1998) COD 134 9BD wherein certain principles relating to duty of reasons were elaborated. Lord Chief Justice Bingham, in his opinion, observed that the requirement of giving reasons may be outweighed by concerns of public interest in certain cases, for instance, when it would unduly burden the decision maker. We are not importing any rider of public interest to negate the requirement of reasons; however, the above exposition is useful to understand the effect of absence of reasons on an otherwise legal, rational and just decision.
388. Notably, this Court in Maharashtra State Board and in Mahabir Jute Mills noted that if the function/decision of the Government is administrative, in law, ordinarily there is no requirement to be accompanied by a statement of reasons unless there is an express statutory requirement in that regard. Again, in Sarat Kumar Dash, the Court observed that in the field of administrative action, the reasons are link between maker of the order or the author of the decision and the order itself. The record can be called to consider whether the author had given due consideration to the facts placed before him before he arrives at the decision.
389. Therefore, the requirement of reasons in cases which do not demand it in an express manner is based on desirability and the same is advised to the extent possible without impinging upon the character of the decision-making body and needs of administrative efficiency.
17. In the matter whether the grant of EC or change of land use was duly considered by the competent authority, learned counsel for respondent has submitted that the matter was duly considered by the authorities and the proceedings had been filed before this Tribunal and further that the court or tribunal cannot sit over that cutting edge of scientific analysis relating to the safety or other matters of any project. If there are experts report and the view of the experts has been accepted by the government or the competent 24 authorities, it can be said that the authorities has taken into account the opinion of the expert and the matter was disposed of in due process of law. The Respondent had relied on following paragraphs of the above judgment (2004) 9 SCC 362:
21.In this context, reliance is sought to be placed on the decision of this Court in A.P. Pollution Control Board v. Prof. M. V. Nayudu (Retd.) & Ors., [1999] 2 SCC 718. In that decision, this Court viewed that in scientific matters of complex nature resulting in uncertainty, reference has to be made to a specialised technical/expert body and not merely decide the matter on well known principles of administrative law of court not reexamining the matter if all relevant considerations have been taken note of. In the present case when once a decision had been given by this Court on safety aspects on an earlier occasion and thereafter the matter was again examined by the Government through different agencies and had taken a decision as to the necessity of further test by way of abundant caution should be relevant or not, we do not think, we can sit in judgment over such decision, particularly when there is no difference of opinion among the Experts as to the safety of the dam. It is only by way of abundant caution such studies were suggested by four out of five experts. Thus the usefulness or necessity thereof itself being in doubt, as expressed in various reports, and text books relied on by either side, the principle stated in A.P. Pollution Control Board's case (supra) cannot be applied. In that decision it was noticed that inadequacies of science had led to the precautionary principle leading to the principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the present state of affairs. After detailed consideration of this decision, it is held in Narmada Bachao Andolan's case (supra) (1996) 5 SCC 647:-
123."It appears to us that the 'precautionary principle' and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not know.
When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology or environmental of setting up of an industry is know, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be an ecological disaster. It is when the effect of the project is known that the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.
124. In the present case, we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting 25 industry. The construction of a dam undoubtedly would result in a change of environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in an ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost-effective or leads to ecological or environmental degradation. On the contrary there has been ecological upgradation with the construction of large dams. What is the impact on environment with the construction of a dam is well known in India and, therefore, the decision in A.P. Pollution Control Board case will have no application in the present case.
18. In the case of Bombay Environmental Action Group and Anr vs. State of Maharashtra and Anr. (1990 SSC Online) (Bombay) (Page.357), it was held
16. The petitioners, as public spirited organisations and citizens, have, through their respective Counsel, done their duty by invoking this Court's writ jurisdiction and placing before us all such facts and circumstances as considered best by them. We in our turn, have done our duty by carefully examining all the facts and circumstances in the context of the rival contentions advanced before us on either side. In the course of this elaborate exercise and at every stage of the judicial process, we have kept asking ourselves the question -- Have the quthorities shown such lack of awareness or have they been so oblivious of the needs of environment as to warrant Court's interference?
We do not think so. On the contrary, considerable though deliberation, consultation and application of mind by all concerned authorities and experts has gone into the decision making process. We find on the part of the authorities and experts all the seriousness while considering and deciding upon the varied factors and circumstances including environment in relation to this project. The in depth analysis, the conditions imposed and the precautions taken inspire Court's confidence and, if, at the end of it all, the Court finds that a very conscious decision has been taken in the light of all possible pros and cons, it would then not interfere. The decision of the authorities cannot be said to be arbitrary or capricious or one not in good faith or actuated by improper motive or extraneous considerations.
17. Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in this case, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should then come to an end. Once an elaborate and extensive exercise by all concerned including the environmentalists, the State and the Central authorities and expert- bodies is undertaken and effected and its end result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguments, endless reviews and endless 26 litigation in a matter such as this, can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further.
19. Learned counsel appearing for the appellant had submitted that the appeal was preferred (as alleged), from the date of knowledge is not to be accepted since the words, the cause of the objection for such disputes first arose implied in Section 14 of the National Green Tribunal Act have own legal import. The environmental clearance was granted to the respondent no. l0 by the respondent no. 2 on 01.05.2008 and the appellant had the knowledge about the grant of environmental clearance on 08.05.2008 but filed the writ petition before the High court of Chhattisgarh, Bilaspur, nearly after one year after commencement of NGT Act. As rightly pointed by the respondent that it caused a doubt whether the appellant would have preferred a writ petition before the High Court of Chhattisgarh, Bilaspur in order to circumvent the legal impediment on the point of limitation.
20. Pointing to the order of transfer made by the High court of Chhattisgarh, Bilaspur, the learned counsel for the appellant would submit that while transferring the present appeal, The High Court has observed that the basic challenge is environmental clearance regarding diversion of land and restoration of area and to decide the present issue. But this contention has got to be rejected in view of the order of the High court which reads as follows :
"The basis point of challenge is the environmental clearance dated 01.05.2008. The notification for the diversion of the land as well as the order approving the construction are subsequent to it and are based on it. "
21. From the reading of the order of the High court it would be abundantly clear that the environmental clearance was sought to be quashed and to be set aside and the notification regarding the diversion of land and restoration of area are only based on it. The contentions put forth by the appellant side that the appellant has sought for three reliefs and the main relief is restoration of the leased out area of 34.59 acres of land to the original 27 situation prior to the construction by the respondent no. 10. Thus, it is not directly an appeal under Section 16 but only an appeal seeking a relief under Section 15 though attractive at the first instance, do not stand the scrutiny of law. pointing to Section l5(3) of the NGT Act, the learned counsel would submit that limitation for filing the appeal for restitution of the environment is 5 years from the date of which the cause of action first arose and the restoration of the green belt is covered under the provisions of the NGT Act. Apart from that Schedule - II specially states that the compensation relief could be claimed on account of any harm, damages, destruction to flora including aquatic flora, crops, vegetable, trees and orchards and clause (K) deals with restoration on account of harm, damage of environment including pollution to soil, air, water, land or ecosystem. In the instant case, the case of the appellant is the issue of conversion of green belt for industrial purpose and the grant of environmental clearance would arise for consideration in view of the consideration of the relief and thus, the appeal is within time. This contention has got to be negative for more reasons than one. The main subject matter of challenge is the grant of environmental clearance to the respondent no. 10 by the respondent no. 2 which was done on 01.05.2008 i.e. the date when the first cause of action arose. The appellant has not availed the remedy available under the provisions of NEAA Act. Even as per the averments made by the appellant' the Director Town & country planning, Bhilai respondent no. 5 has issued notice to respondent no. 10 regarding the land use modification without the permission, in its original condition. It is highly doubtful whether the appellant can apply and ask for restoration of land in question. The limitation of 5 years, as provided under section 15 of the NGT Act,2010 cannot at all applied to the present of the case since someone should use an area earmarked as green for any other purpose. In the instant case, the State Government has modified the land use from green belt to industrial by exercise of statutory powers conferred on it. In other words, the land notified as industrial area by the State Government is being used by the 28 respondent no. l0 for industrial purpose. If the relief of restoration as asked for by appellant is to be considered and granted, necessarily the validity of the act of modification of land use by the State Government of Chhattisgarh has to be gone into and examine and if to be done so, it has to be done under the provisions of Chhattisgarh Town and Country planning Act and the said enactment is outside the seven enactments of the Schedule - I of NGT Act 2010 and hence no doubt it would fall outside the jurisdiction of the NGT. As could be seen above, the primary question in the appeal, as pointed out by the Hon'ble High court in its order of transfer has a legality or otherwise of the grant of the EC dated 01.05.2008 in respect of which the appellant did not avail the remedy within the stipulated time under the provisions of NEAA Act and has filed the writ petition long after the lapse of one year and the other two questions namely the conversion of the use of land and also the restoration of land to its original condition are the questions based on it and would arise consequently to the first one.
22. Apart from that the appellant has also challenged the notification dated 03.02,2011 where by the modification from the green belt to industrial purpose was made and sought to quash the same. The relief sought for by the appellant would not fall within the jurisdiction of the Tribunal since the said conversion of the land use was in exercise of the powers under Section 23(A) Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam Act, 1973. Needless to say that the Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam Act, 1973 is not included in the seven enactments specified in the Schedule - I of the NGT Act.
23. The contention put forth by the learned Counsel for the appellant that the respondents are taking diametrically opposite stand that when the writ petition was pending before the Hon'ble High Court of Chhattisgarh, it was submitted that the appellant had an efficacious and alterative remedy before the NGT and on transfer to the Tribunal they are putting forth an exactly opposite stand that the Tribunal has no jurisdiction to trial and 29 since it is a matter of transfer by the constitutional Court, the Tribunal has to make an enquiry on the merit of the matter rejecting the contentions now put forth by the respondent side. This contention cannot be countenanced. When the writ petition was pending was pending before the Hon'ble High Court of Chhattisgarh, the respondent in the reply has not only stated that the appellant has an efficacious and alterative remedy before the NGT but has also specifically averred that a challenge before the Tribunal was barred by limitation and the appellant has avoided that by filing the writ petition. The Hon'ble High Court, in view of the judgment of the Hon'ble Supreme Court in Writ Petition No. 50/98 Bhopal Gas Peedith Mahila Udyog Sangathan and Others Vs. Union of India has passed an order of transfer. By the said judgment in Writ Petition No. 50/98 Bhopal Gas Peedith Mahila Udyog Sangathan and Others Vs. Union of India, the Hon'ble Supreme Court issued a direction that all the matters instituted after the NGT Act coming into force and which were covered under and / or in NGT Act should stand transferred and could be only instituted before the NGT. Thus, it would be quite clear that the question as to maintainability on the jurisdiction and limitation were kept open to be decided by the Tribunal. Thus, the contentions put forth by the Learned Counsel for the appellant that since, the Writ Petition was transferred to Tribunal question of maintainability does not arise for consideration cannot be countenanced.
24. In construing a statutory provision the first and foremost rule of construction is the literary construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear. In a more recent judgment, the Supreme Court, in Balwant Singh (Dead) Vs. Jagdish Singh and Ors. (2010) 8 SCC 685, while dealing with the expression 'sufficient cause', elaborately stated the principles of 30 condonation of delay. It also elucidated the approach to be adopted by a Court in such cases and held as under:
"It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression 'sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect 'sufficient cause' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997] The expression 'sufficient cause' implies the presence of legal and adequate reasons. The word 'sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see if it could have been avoided by the party by the exercise of due care and attention."
25. According to the non-applicant, the Tribunal will have no jurisdiction to 31 condone the delay in view of the language of Section 16 of the NGT Act, which reads as under:
"16. Tribunal to have appellate jurisdiction - Any person aggrieved by,-
********* h. an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986;
********* may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days."
26. From language of the above provision it is clear that the Tribunal loses jurisdiction to condone the delay if the delay is of more than 90 days. Every appeal has to be filed within 30 days from the date of communication of the order. That is, what an applicant is required to ensure before the appeal is heard on merits. However, the Tribunal has been vested with the jurisdiction to entertain the appeal which is filed after 30 days from the date of communication of an order. This power to condone the delay has a clear inbuilt limitation as it ceases to exist if the appeal is filed in excess of 60 days, beyond the prescribed period of limitation of 30 days from the date of communication of such order. To put it simply, once the period of 90 days lapses from the date of communication of the order, the Tribunal has no jurisdiction to condone the delay. The language of the provision is clear and explicit. It admits of no ambiguity and the legislative intent that Tribunal should not and cannot condone the delay in excess of 90 days in all, is clear from the plain language of the provision.
27. Section 16 of the NGT Act, 2010, provides for prescribed period of thirty (30) day for filing of the Appeal. The proviso appended to Section 16, however, gives discretion to the Tribunal, that if it is satisfied "that the Appellant was 32 prevented by sufficient cause" from filing the Appeal, within the said period, it may allow (the Appeal) to be filed under this Section within a further period not exceeding sixty (60) days. Thus, limitation period can be extended only up to period of sixty (60) days only, if it is demonstrated by the Appellant that there was cause for him, which prevented him from filing of the Appeal, within initial prescribed period of limitation. In Sunil Kumar Samanta, M/s. Samanta Engineering Workds, 1, B.T. Road, Barrackpore, North 24-Parganas, v. West Bengal Pollution Control Board & Ors. (2014 India NGT Reporter (Part
3) 250), the Hon'ble Principal Bench of this Tribunal, elaborately considered the relevant proviso of Section 16 of the NGT Act, 2010. The Hon'ble Principal Bench also considered analogues provisions of the Limitation Act. The Hon'ble Principal Bench, held that:
33. Normally, the statutory period of limitation provided in a provision like under the NGT Act, is un-extendable by recourse to provisions of Section 5 of the Limitation Act. While applying the provisions of limitation, besides applying the rule of strict construction, the Tribunal has to keep a balance between rival rights of the parties; appellant who has lost his right or whose remedy is barred by time and other to whom a benefit has accrued as a result of loss of right of the first. At this stage, it may be appropriate to make reference to a recent judgment of the Supreme Court, in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others [JT 2013 (12) SC 450), where the Court was primarily concerned with the condonation of delay in filing an appeal. The Court adverted itself towards the respective rights and obligations of the parties and held as under:
"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play."
28. ln light of these principles, the contention of the appellant that the National 33 Green Tribunal is the forum to which first appeal is provided against the orders specified in Section 16 of the NGT Act and that these provisions should be construed liberally, can hardly be accepted. Also there is no question of deprivation of right to appellant. The right of appeal is a statutory right and can be exercised within the prescribed period of limitation. If a party chooses to sleep over its right and permits the remedy available to it to become barred by time, then it can hardly be heard to contend that it has lost a valuable right and the result is unjust. Such interpretation would be a normal corollary of application of rule of 'plain construction'. This would be in line with the object and purpose of the Act and would also sub serve the cause of justice. This interpretation would not preclude any litigant from taking recourse to an appropriate remedy prescribed in in accordance with law.
29. We cannot and shall not overlook mandate of the proviso appended to Section 16 of the NGT Act, 2010, which carve out exception to the general Rule provided under Section 16 of the NGT Act, 2010. It is well stated that 'proviso' is always an exception to the main Rule, which is set out in the provision of the Rules. Needless to say, the 'proviso' will not supersede the main provision. The language of proviso, appended to Section 16, would make it amply clear that the Tribunal "must be satisfied by the Appellant with tangible reasons, which prevented him from filing of the Appeal within prescribed period of limitation, in order to make him eligible to ask for concession for extension of time". True, interpretation of the proviso has to be primarily made and the same cannot be used as cobweb to deprive a genuine litigant from approaching the Tribunal. Still, however, in an appropriate case, where there is absolutely no acceptable explanation given by the Appellant, then extension of period of under the proviso, is unwarranted grant of premium in- spite of absence of satisfactory reason being stated in the delay condonatin Application. Such an Application cannot be granted just for asking by a litigant, who fails to explain reasons for the delay.
30. There is no provision in the Act to file one appeal against several available orders. The relief as sought by the appellant contains more than one 34 appealable order and appellant had right to file an appeal separately before the competent forum but, he adopted to file PIL. This takes us to the question of maintainability of the Application in a composite form, which he says is dual- Appeal-cum-Application, filed in view of availability of plural remedies, in accordance with Rule 14 of the National Green Tribunal (Practices and Procedure) Rules, 2011. We shall deal with his contention, in order to set right the issue once for all, inasmuch as it is likely to be raised in many such cases, on similar ground. Rule 14 of the NGT (Practices and Procedure) Rules, 2011, reads as follows:
"Rule 14. Plural remedies- An application or appeal, as the case may be, shall be based upon a single cause of action and may seek one or more relief provided that they are consequential to one another."
31. Perusal of Rule 14, without any pre-judicial notions in the mind, will make it amply clear that any Application or Appeal, as the opening words imply are distinct remedies under which the particular relief may be sought on single cause of action. Thus, if properly read, the Rule provides as follows:
i) There may be either single Application or Appeal. In other words, it cannot be a comprehensive or hybrid type of pleadings like Appeal-cum-Application, as captioned by the Appellant-cum-Applicant, as in the present Application/Appeals.
ii) The Appeal or Application, whatsoever it may, be must be filed on single cause of action. Thus, it cannot be filed on several causes of action. In other words, an Appeal cannot be filed with combined causes challenging different ECs or orders, nor an Application can be filed challenging different orders or different violations under the different Laws.
iii) Still, however, choice given to the Appellant/Applicant is to ask for grant of more than one relief in case such reliefs, are of consequential character.
In other words, if a relief depends upon grant of another relief, then grant of more than one relief is permissible. For example; in case EC for grant of a project is challenged on the ground that there is no permission from CRZ Authority to the construction carried out, then consequential relief to demolish illegal construction carried out, without CRZ Authority's permission, which falls withinCRZ area/NDZ area.
35
32. We cannot overlook and brush aside main provisions of the NGT Act, which do not provide for any kind of permission to allow filing of two (2) Appeals, one against time barred EC, coupled with another EC for revised plan along with an Application under Sections 14,15 and 18 of the NGT Act, 2010.
33. Once we examine the provision of Section 16 of the NGT Act in the light of the above principle, it is clear that the provision is neither ambiguous nor indefinite. The expressions used by the legislature are clear and convey the legislative intent. The communication of an order granting the Environmental Clearance has to be made by the MoEF as well as the Project Proponent in adherence to law. The communication would be complete when it is undisputedly put in the public domain by the recognised modes, in accordance with the said provision. The limitation of 30 days would commence from that date. If the appeal is presented beyond the period of 30 days, in that event, it becomes obligatory upon the applicant to show sufficient cause explaining the delay. The delay must be bona fide and not a result of negligence or intentional inaction or mala fide and must not result in the abuse of process of law. Once these ingredients are satisfied the Tribunal shall adopt a balanced approach in light of the facts and circumstances of a given case".
36. Trite law it is that the special law of limitation in any given enactment will always exclude the general law of limitation. The NGT Act, 2010, a special enactment specifically provides a period of limitation under section 14(2) and 15(3). The Principal Bench, NGT has already held in Jesurathinam v. MoEF, Union of India reported in 2012 (2) FLT 811 NGT that when a specific provision for limitation is provided under the special statute, the general provisions of the Limitation Act, 1963 are inapplicable. Hence, the Tribunal is afraid whether the theory of continuing cause of action can be made applicable to the present factual position of the case for which the specific period of limitation is available under the NGT Act, 2010.
34. The rule 14 of the NGT, Rules 2011 reads as follows:
"14. Plural remedies.-An application or appeal, as the case may be, shall be based upon a single cause of action and may seek one or more relief provided that they are consequential to one another".
35. The appellant had sought three different reliefs:
(a) For quashing the EC dated 01.05.2008
(b) Quashing the notification dated 03.02.2011 36
(c) Restoration of land leased out to the respondent no.10.
36. Thus, it would be quite clear that reliefs sought for on two distinct and different causes of action would be repugnant to rule 14 of the NGT Rules, 2011. The words 'consequential' to one another employed in rule 14 of the NGT Rules, 2011 would make the intention of the Legislature explicit that the reliefs sought for by the applicant or appellant can be more than one if they are consequential to one another but certainly not on two different causes of action. 'Consequential relief should flow directly as a natural sequence from the main and substantive relief and it can even be incidental also. But, it should be wholly connected to the main or the substantive relief and thus should arise from the same cause of action. In the instant case, two different and distinctive reliefs based on two separated causes of action are asked for by the appellant. The submission by the learned counsel for the appellant that the relief was for striking down the 2011 Office Memorandum and setting aside of EC are intrinsically linked is worth to be ignored. In the face of rule 14 of NGT Rules, 2011 as seen above, it would be futile to contend that the rule 14 does not restrict the jurisdiction of cause of action. The Hon'ble Western Zone Bench of the NGT at Pune had an occasion to consider the question of maintainability of the application in a composite form of application- cum-appeal filed in view of the availability of the plural remedies in accordance with rule 14 of NGT Rules, 2011 in Vikas K. Tripathi Mumbai v. The Secretary, MoEF reported in 2014 ALL (I) NGT Reporter (3) (Pune) 95 and has held as follows:
"21........... We shall deal his contention in order to set right issue once for all, in as much as it is likely to be raised in many such cases on similar ground. Rule 14 of the NGT (Practices and Procedure) Rules, 2011 reads as follows:
"Rule 14. Plural remedies.-An application or appeal, as the case may be, shall be based upon a single cause of action and may seek one or more relief provided that they are consequential to one another".
22. Perusal of Rule 14, without any prejudicial notions in the mind, will make it amply clear that any Application or Appeal, as the opening 37 words imply are distinct remedies under which the particular relief may be sought on single cause of action. Thus, if properly read the rule provide as follows:
i) There may be either single Application or Appeal. In other words, it cannot be a comprehensive or hybrid type of pleadings like Appeal-cum-Application, as captioned by the Appellant-cum-Applicant (Vikas Tripathy) as in the present Application/Appeals.
ii) The Appeal or Application, whatsoever it may be must be filed on single cause of action. Thus, it cannot be filed on several causes of action. In other words, an Appeal cannot be filed with combined causes challenging different ECs or orders, nor an Application can be filed challenging different orders or different violations under the different laws.
iii) Still, however, choice given to the Appellant/Applicant is to ask for grant of more than one relief in case such reliefs are of consequential character. In other words, if a relief depends upon grant of another relief, then grant of more than one relief is permissible.
22. * * *
23. We cannot overlook and brush aside main provisions of the NGT Act, which do not provide for any kind of permission to allow filing of two Appeals, one against the time barred EC, coupled with another EC for revised construction plan along with an Application under Sections 14, 15 and 18 of the NGT Act, 2010. In case, Vikas Tripathi is genuinely interested in the cause of environment and feels that the project in question has caused violations of EC conditions/deterioration of the environment of the environment, then he is at liberty to file a separate Application under Section 14(1)(2) read with Sections 15 and 18 of the NGT Act, 2010 if so advised and if it is permissible under law. He cannot, however, club all such Appeals and Applications together and explore to examine whether one cap fits on another".
37. Applying the principle laid down as above, we have no hesitation to hold that the appellant on two distinct and independent causes of action cannot maintain the present appeal. It is argued by the respondent that it is forum hunting and it is intended to continue till the appellant does not achieve a desired goal. The platform of the Tribunal or the Courts cannot be made a platform to compel the opposite party to pass a desired order. The matter cannot be agitated and to be continued till infinity and it should come at rest. The Hon'ble Supreme Court in Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and 38 frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In Tamil Nadu Electricity Board & Anr. Vs. N. Raju Reddiar & Anr. AIR 1997 SC 1005 the Hon'ble Supreme Court held that filing successive misconceived and frivolous applications for clarification, modification or for seeking a review of the order interferes with the purity of the administration of law and salutary and healthy practice. Such a litigant must be dealt with a very heavy hand.
In Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such litigant is not required to be dealt with lightly.
In Abdul Rahman Vs. Prasoni Bai & Anr., (2003) 1 SCC 488, the Hon'ble Supreme Court held that wherever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law."
"It is well established rule of interpretation of a statute by reference to the exposition it has received from contemporary authority. However, the Apex Court added the words of caution that such a rule must give way where the language of the statute is plain and unambiguous. Similarly, in Collector of Central Excise, Bombay-I & Anr. Vs. M/s. Parle Export (P) Ltd., AIR 1980 SC 644, the Hon'ble Supreme Court observed that the words used in the provision should be understood in the same way in which they have been understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. In Indian Metals and Ferro Alloys Ltd., Cuttack Vs. The Collector of Central Excise, Bhubaneshwar, AIR 1991 SC 1028, the Hon'ble Supreme Court has applied the same rule of interpretation by holding that "contemporanea expositio by the administrative authority is a very useful and relevant guide to the interpretation of the expression used in a statutory instrument." Same view has been taken by the Hon'ble Supreme Court in State of Madhya Pradesh Vs. G.S. Daal and Flour Mills (Supra); and Y.P. Chawla & Ors. Vs. M.P. Tiwari and Anr., AIR 1992 SC 1360. In N. Suresh Nathan & Ors. Vs. Union of India & Ors, 1992 (Suppl) 1 SCC 584; and M.B. Joshi & Ors. Vs. Satish Kumar Pandey & Ors., 1993 (Suppl.) 2 SCC 419, the Apex Court observed that construction in consonance with long-standing practice prevailing in the concerned department is to be preferred."
38. In M/s. J.K. Cotton Spinning & Weaving Mills Ltd. & Anr. Vs. Unionof India & Ors., AIR 1988 SC 191, it has been held that the maxim is applicable in 39 construing ancient statute but not to interpret Acts which are comparatively modern and an interpretation should be given to the words used in context of the new facts and situation, if the words are capable of comprehending them. Similar view had been taken by the Apex Court in Senior Electric Inspector & Ors. Vs. Laxminarayan Chopra & Anr., AIR 1962 SC 159.
39. In Desh Bandhu Gupta & Co. & Ors Vs. Delhi Stock Exchange Association Ltd., AIR 1979 SC 1049, the Apex Court observed that the principle of contemporenea expositio, i.e. interpreting a document by reference to the exposition it has received from Competent Authority can be invoked though the same will not always be decisive of the question of construction. The administrative construction, i.e. the contemporaneous construction placed by administrative or executive officers responsible for execution of the Act/Rules etc. generally should be clearly wrong before it is over-turned. Such a construction commonly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive. However, it may be disregarded for cogent reasons. In a clear case of error the Court should, without hesitation refuse to follow such construction for the reason that "wrong practice does not make the law." (Vide Municipal Corporation for City of Pune & Anr. Vs. Bharat Forge Co. Ltd. & Ors., AIR 1996 SC 2856). In D. Stephen Joseph Vs. Union of India & Ors., (1997) 4 SCC 753, the Hon'ble Supreme Court has held that "past practice should not be upset provided such practice conforms to the rules" but must be ignored if it is found to be de hors the rules.
40. However, in Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr., AIR 2003 SC 3502, the Apex Court held that "the manner in which a statutory authority had understood the application of a statute would not confer any legal right upon a party unless the same finds favour with the Court of law dealing with the matter".
Therefore, "contemporanea exposito" by the State 40 instrumentality is very useful and relevant for providing guidance to interpretation of expression used in the Rules. The administrative construction placed by the executive officers, responsible for execution of rules should be accepted and does not warrant over-turning unless found not in conformity of the Rules."
"When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury toanother."
41. In Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:
"..............Equally, the judicial
process should never become an
instrument of appreciation or abuse or
a means in the process of the Court to
subvert justice."-
Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-
"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Art.
226...... indeed any of their
discretionary powers. (Emphasis
added)"
In Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes.
Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In M/s. Tilokchand Motichand & Ors. Vs. H.B. Munshi & 41 Anr., AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court."
42. In Agriculture & Process Food Products Vs. Oswal Agro Furane & Ors., AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Hon'ble Supreme Court had placed reliance upon the judgment in King Vs. General Commissioner, (1917) 1 KB 486, wherein it has been observed as under:-
"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits. "
In Abdul Rahman Vs. Prasony Bai & Anr., AIR 2003 SC 718; and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., (2004) 7 SCC 166, the Hon'ble Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would have led any fact on the on the merit of the case."
43. It is argued that the order issued by the respondent no. 1 is without jurisdiction and without application of the mind and thus is not to be complied with. In a case reported in 2011 (3) SCC 364, Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, it was held as 42 follows:
"16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Man jeri Manikoth Naduvil, (1996) 1 SCC 435, Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., (1997) 3 SCC 443, M. Meenakshi v. Metadin Agarwal and Sneh Gupta v. Devi Sarup, (2009) 6 SCC 194, this court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.
17. In State of Punjab V. Gurdev Singh this court held that a party aggrieved by the in validity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Elloe RDC, wherein Lord Radchiffe observed: (AC pp. 769-70) "...An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity (on) its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
18. In Sultan Sadik v. Sanjay Raj Subba, (2004) 2 SCC 1377, this court took a view observing that once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
44. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person."
45. Section 3 of the Environment (Protection) Act, 1986 empowers the Central 43 Government to take all such measures for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. One of the measures provided in Section 3 (2) (v) is restriction of areas in which any industries, operations or processes or class of industries shall not be carried out or shall be carried out subject to certain safeguards. The Environment (Protection) Rules, 1986 were made in exercise of power conferred by Sections 6 and 25 of the Environment (Protection) Act, 1986. According to Rule 5, the Central Government may prohibit or restrict the location of industries and the carrying on of processes and operations in different areas. In exercise of the power conferred on the Central Government by Sub-Clause (i) and Clause (v) of Sub-Section (2) of Section 3 of the Environment (Protection) Act, 1986 read with Clause (b) of Sub rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, the Ministry of Environment and Forests, Government of India issued a Notification on 14.09.2006 directing construction of new projects or activities or the expansion or modernization of existing projects or activities listed under the Schedule to the Notification shall be undertaken only after prior environmental clearance from the Central Government or the State Level Environment Impact Assessment Authority.
46. A statutory rule or Notification is to be treated as a part of the statute.[1982]2SCC 205. Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act, are to be of the same effect as if they are contained in the Act, and are to be judicially noticed for all purposes of construction or obligation [1961] SCR (2) 679. The principles of interpretation of subordinate legislation are applicable to the interpretation of statutory Notifications. [2011]6 SCC 545 If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the law-giver.
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47. It has been repeatedly held by the Court that where there is no ambiguity in the words, literal meaning has to be applied, which is the golden rule of interpretation. The words of a statute must prima facie be given their ordinary meaning. [2002] 3 SCC 722.
48. While economic development should not be allowed at the cost of ecology or by causing widespread environmental destruction, the necessity to preserve ecology and environment should not hamper economic and other development. Both development and environment must go hand in hand. In other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment [Indian council for enviro-legal action v union of India [1996]5 SCC 281]. The traditional concept that development and ecology are opposed to each other is no longer acceptable [Vellore Citizens Welfare Forum v. Union of India [1996]5 SCC 647].
49. In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone. The rule of law is to be distinguished from rule by the law. The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is capable of exacting compliance. Rule by the law on the other hand can mean rule by a despotic law. It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations. A rule of law framework encompasses rules of law but it does much more than that. It embodies matters of substance and process. It dwells on the institutions which provide the arc of governance. By focusing on the structural norms which guide institutional decision making, rule of law frameworks recognize the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which 45 they are constituted, composed and governed. A modern rule of law framework is hence comprehensive in its sweep and ambit. It recognizes that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power. Rule of law then dwells beyond a compendium which sanctifies rules of law. Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance.
50. The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools - conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges - of how they have been shaped by humanity's interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity's actions have charted. The environmental rule of law seeks to facilitate a multi- disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognizes that the 'law' element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the 46 environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connect which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco-system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learning's of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognizes the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance - of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and institutional elements. The ools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect 47 and regenerate the environment today.
51. In its decision in Hanuman Laxman Aroskar vs Union of India,[2019] 15 SCC 401 the Court, recognized the importance of protecting the environmental rule of law. The court observed:
"142. Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem.
"143. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement -- both in developed and developing countries alike ...
156. The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution."
52. In its first global report on environmental rule of law in January 2019, the United Nations Environment Programme ("UNEP") has presciently stated:
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"If human society is to stay within the bounds of critical ecological thresholds, it is imperative that environmental laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet. Environmental rule of law offers a framework for addressing the gap between environmental laws on the books and in practice and is key to achieving the Sustainable Development Goals.
Successful implementation of environmental law depends on the ability to quickly and efficiently resolve environmental disputes and punish environmental violations. Providing environmental adjudicators and enforcers with the tools that allow them to respond to environmental matters flexibly, transparently, and meaningfully is a critical building block of environmental rule of law"
53. The need to adjudicate disputes over environmental harm within a rule of law framework is rooted in a principled commitment to ensure fidelity to the legal framework regulating environmental protection in a manner that transcends a case-by-case adjudication. Before this mode of analysis gained acceptance, we faced a situation in which, despite the existence of environmental legislation on the statute books, there was an absence of a set of overarching judicially recognized principles that could inform environmental adjudication in a manner that was stable, certain and predictable. In an article in the Asia-Pacific Journal of Environmental Law (2014), Bruce Pardy describes this conundrum in the following terms:
"Environmental regulations and standards typically identify specific limits or prohibitions on detrimental activities or substances. They are created to reflect the principles and prohibitions contained in the statute under which they are promulgated. However, where the contents of the statute are themselves 49 indeterminate, there is no concrete rule or set of criteria to apply to formulate the standards.
Their development can therefore be highly political and potentially arbitrary.
Instead of serving to protect citizens' environmental welfare, an indeterminate environmental law facilitates a utilitarian calculus that allows diffuse interests to be placed aside when they are judged to be less valuable than competing considerations."
54. However, even while using the framework of an environmental rule of law, the difficulty we face is this - when adjudicating bodies are called on to adjudicate on environmental infractions, the precise harm that has taken place is often not susceptible to concrete quantification. While the framework provides valuable guidance in relation to the principles to be kept in mind while adjudicating upon environmental disputes, it does not provide clear pathways to determine the harm caused in multifarious factual situations that fall for judicial consideration. The determination of such harm requires access to scientific data which is often times difficult to come by in individual situations.
55. In an article in the Georgetown Environmental Law Review (2020), Arnold Kreilhuber and Angela Kariuki explain the manner in which the environmental rule of law seeks to resolve this imbroglio:
"One of the main distinctions between environmental rule of law and other areas of law is the need to make decisions to protect human health and the environment in the face of uncertainty and data gaps.
Instead of being paralyzed into inaction, careful
documentation of the state of knowledge and
uncertainties allows the regulated community,
stakeholders, and other institutions to more fully understand why certain decisions were made."
The point, therefore, is simply this - the environmental rule of law calls on us, as judges, to marshal the knowledge 50 emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law.
56. In a recent decision of the Court in Bengaluru Development Authority vs. Sudhakar Hegde 2020 SCC online sc 328, the Hon'ble Supreme Court held:
"107. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth...
"108. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions... "109. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under 51 Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place."
57. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far from for more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and convenience and benefits to a larger section of the people has to get privacy over comparatively lesser hardship.
58. This indicates that while applying the concept of sustainable development one has to keep in mind the principal of proportionality based on the concept of balance. It is an exercise in which we have to balance apriorities of development on one hand and environmental protection on the other hand.
59. Accordingly, conclusions are as follows:
(a) As already decided by Hon'ble the Supreme Court of India vide order dated 07.03.2022 in Civil Appeal No. 2804 of 2014, the challenge to the EC is barred by limitation.
(b) There is no provision to entertain appeal cum application.
(c) Rule 14 of the NGT (Practices and Procedure), 2011 provides that an application or appeal as the case may be shall be based upon a single cause of action and may seek one or more relief provided that they are consequential to one another. There may be either single application or appeal. Relief as sought is not maintainable.
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(d) The notification dated 03.02,2011 where by the modification from the green belt to industrial purpose was passed in exercise of the powers under Section 23(A) Chhattisgarh Nagar Tatha Gram Nivesh Adhiniyam Act, 1973 and appeal/revision of the order/notification (if permissible) was maintainable under the said act. The relief sought for by the appellant would not fall within the jurisdiction of the Tribunal since the said conversion of the land use was not included in the seven enactments specified in the Schedule - I of the NGT Act.
(e) Hon'ble the High Court in the PIL matter held that the basic point of challenge is the EC and rest of the relief are subsequent to it and are based on it.
(f) In light of the above matter and in light of proviso contained to Section 18 and 14 of the NGT Act, no fresh O.A. is maintainable.
(g) The project is in accordance with the EC issued from the competent authority and notification issued from the State. The applicant failed to prove that the project is detrimental to the cause of environment.
(h) In view of the above, the appeal is devoid of any merit and deserved to be dismissed and, dismissed accordingly.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 03rd August, 2022 Appeal No. 01/2013 (CZ) PU 53