Orissa High Court
M/S Vedanta Aluminium Limited vs Union Of India on 19 January, 2012
Author: V.Gopala Gowda
Bench: V.Gopala Gowda
HIGH COURT OF ORISSA: CUTTACK
RVWPET No.218 of 2011
In the matter of an application for review of the judgment dated 19.07.2011
passed by this Court in W.P.(C) No.19605 of 2010.
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M/s Vedanta Aluminium Limited,
represented by Dr.Mukesh Kumar,
President & Chief Operative Officer,
AT/PO: Lanjigarh, Dist: Kalahandi ... Petitioner.
-Versus-
Union of India, represented through its
Secretary, Ministry of Environment & Forest,
Government of India, New Delhi
& others ... Opp. Parties
For Petitioner : Mr.J.Pattnaik, Senior Advocate
M/s Prashanta Kumar Nayak,
A.Patnaik, M.S.Rizvi, S.Patnaik
& T.Mishra
For Opp. Parties : Mr.S.D.Das,
Assistant Solicitor General
(For O.P. No.1)
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R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA
AND
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment:19.01.2012
B.N.Mahapatra,J. This Review petition has been filed with a prayer to review /
recall the judgment dated 19.07.2011 passed in W.P.(C). No.19605 of 2010.
2. While the Review petition was being heard, learned counsel for
the parties appearing in the review petition were directed to make
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submission on merits, as prima facie case for review of the order passed in
W.P.(C) No.19605 of 2010 was made out by the petitioner.
3. Mr. J. Patnaik, learned Senior Advocate appearing for the review
petitioner submitted that while certain important issues/questions were
framed by this Court for consideration and final adjudication of the writ
petition, one vital and important question was not dealt with inadvertently,
as a result of which, this Court had not granted relief in favour of the
petitioner. During pendency of the writ petition, opposite party No.1-Ministry
of Environment and Forest (in short, "MoEF") issued an Office Memorandum
dated 16.11.2010 regarding consideration of proposals involving violation of
Environment (Protection) Act, 1986 (for short, 'Act, 1986') or Environment
Impact Assessment (EIA) Notification, 2006/the CRZ Notification, 1991.
Pursuant to the said Office Memorandum dated 16.11.2010 issued by
opposite party No.1, the petitioner without prejudice to its rights and
contentions and believing that it is not in fact in violation of any of the
environmental norms, applied to opposite parties vide application dated
22.11.2010; but no action was taken on the said application. Non-
consideration of the said application by the opposite parties is patently unfair, grossly unjust as it would cause irreparable and irremediable hardship and loss to the petitioner. This Court had not entered into the area of adjudication in its judgment regarding the Office Memorandum dated 16.11.2010 and the consequential discrimination. The said document is very 3 much vital and important for proper adjudication of the case in hand. Mr. Patnaik, further submitted that pursuant to Office Memorandum dated 16.11.2010, the case of Jindal Power Limited, Tamnar, Raigarh, Chhatisgarh was considered and the Jindal Power Limited was given green signal to go ahead with its project whereas, the case of the petitioner is yet to be considered by the opposite parties. This is highly discriminatory and violative of Article 14 of the Constitution of India. This aspect should have been considered and decided by this Court. The term of reference was withdrawn by the MOEF both for the petitioner as well as for the Jindal Power Limited. Public hearing was also withdrawn for both the petitioner and the Jindal Power Limited. However, opposite party No.1 rejected the proposal of the petitioner on the ground that terms of reference were rejected. It is further submitted that Jindal Power Limited made request to opposite party No.1 for regularization of its proposal even before the Office Memorandum dated 16.11.2010 came into force. Admittedly, the petitioner approached the opposite party No.1 after the Office Memorandum came into force. But opposite party No.1, after receiving the request/proposal from the Jindal Power Limited forthwith referred the proposal/request for regularization of its project to the EAC which ultimately had regularized the proposal of the Jindal Power Limited. But at the same time the request received by opposite party No.1 from the petitioner was rejected at the threshold, i.e., by the MOEF in a very clandestine manner without giving any valid and cogent 4 reasons. Such action of the opposite party clearly reflects the anius malus of opposite party No.1. There is no stipulation whatsoever that the aforesaid Office Memorandum will not be applicable where terms of reference are withdrawn. Therefore, such stand taken by opposite party No.1 de hors the Office Memorandum dated 16.11.2010 which is unsustainable in the eye of law.
4. This Court may also have incorporated certain guidelines in its judgment dated 19.07.2011 for proper implementation of the Office Memorandum dated 16.11.2010.
5. Placing reliance on the judgment of the Hon'ble Supreme Court in the case of Shivdeo Singh and others v. State of Punjab & others, AIR 1963 SC 1909, Mr. Pattnaik submitted that there is nothing in Article 226 of the Constitution of India to preclude the High Court from exercising power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.
6. Further, placing reliance on the decision of the Hon'ble Supreme Court in the case of Rajendra Singh v. Lt. Governor, Andaman & Nicobar Islads & Ors., AIR 2006 SC 75, Mr. Patnaik submitted that power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent miscarriage of justice. This power extends to correct all errors to prevent miscarriage of justice and the Courts should not 5 hesitate to review its own earlier order when there exists an error on the face of the record and the interest of the justice so demands in appropriate cases.
7. Mr.S.D.Das, learned Assistant Solicitor General submitted that the Review Petition is not maintainable as no case for review under Order 47, Rule 1, CPC is made out. Placing reliance on a judgment of this Court in the case of Governing Body of Ispat College, Rourkela Vs. State of Orissa & Ors., (RVWPET Nos.249 & 254 of 2009), disposed of on 11.01.2011, Mr. Das submitted that filing of Review Petition and argument on it by a new counsel who was not the counsel appearing in the original proceeding cannot be permitted. In the instant case, Mr.J.Patnaik, learned Senior Advocate was not the counsel who argued the original writ petition. Hence, on that ground, the present Review Petition should be dismissed. Moreover, it is not correct on the part of the Review Petitioner to say that this Court has not dealt with the Office Memorandum dated 16.11.2010 (Annexure-
32) in its judgment. In paragraph 21 of the judgment, this Court has taken note of said Notification and dealt with it. It was further contended that pursuant to the impugned judgment of this Court sought to be reviewed, the review petitioner has already approached Ministry of Environment and Forest, Government of India, New Delhi. Therefore, this Review petition is not maintainable.
8. Office Memorandum dated 16.11.2010 of the Ministry provides the procedure henceforth to deal with cases for violation of the Act, 1986 or 6 EIA Notification, 2006. Paragraph 4(i) of the Circular dated 16.11.2010 issued by the Ministry envisages that all such cases of violation which are submitted to the Ministry/State Environmental Impact Assessment Authorities for environmental clearance would be referred to the Expert Appraisal Committee/State Expert Appraisal Committees for their consideration on merit of the proposal. After the above Committees make their recommendations on the project, the proposal will be processed on file for obtaining the approval of the Competent Authority of the Ministry. Since the appraisal process was not completed, and the petitioner had violated the EIA Notification, 2006, final directions were issued for withdrawal of the terms of reference issued in March, 2009 and cancellation of public hearing held on 25.04.2009. It was further directed that the process of environmental clearance has to be started de novo. Any consideration of fresh proposal for environmental clearance to be submitted by the Company shall not be construed as regularization/condonation for violation of the Act, 1986 and EIA Notification, 2006, which took place due to undertaking for substantial construction activity without prior environmental clearance by the petitioner.
9. At this juncture, it is necessary to refer the questions framed by this Court on the basis of the arguments advanced by respective parties in W.P.(C) No.19605 of 2010, which are as follows:-
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(i) Whether the provisions of paragraphs 1, 2 and 7 (ii) of the EIA Notification, 2006 are applicable to the expansion project of the petitioner?
(ii) Whether construction work undertaken by the petitioner for expansion of its existing project without obtaining environmental clearance violates the mandates of EIA Notification, 2006?
(iii) Whether opposite parties are justified in withdrawing the Terms of Reference and in canceling the public hearing proceeding held in respect of the proposed expansion plan?
(iv) Whether opposite party No.1 is justified in holding that the process for environmental clearance has to be started de novo and the petitioner has to submit fresh proposal to the Ministry for obtaining environmental clearance for the expansion project under the procedure laid down in the EIA Notification, 2006?
10. While answering the above questions, this Court held that provisions contained in paragraph 1, 2, 7(ii) of the EIA Notification, 2006 are applicable to expansion project of the petitioner. This Court further held that the construction work undertaken by the petitioner for expansion of its project without obtaining environmental clearance is violative of the mandate of EIA Notification, 2006 and therefore, the opposite parties are justified in withdrawing the terms of reference and in canceling the public 8 hearing proceeding held in respect of the proposed expansion. The opposite parties are also justified in holding that the process for environmental clearance has to be started de novo for which the petitioner has to submit fresh proposal to the Ministry under the procedure laid down in the EIA Notification, 2006.
11. Further, in course of hearing of the Review petitioner, Mr. S.D. Das, learned Asst. Solicitor General submitted that the petitioner has acted upon the impugned judgment and made an application to the MoEF pursuant to the direction given therein.
12. Undisputedly, the petitioner has completed about 50% to 55% of expansion work without obtaining the environmental clearance which is violative of the provisions of the EIA Notification, 2006 issued under sub- Rule (3) of Rule 5 of Environment (Protection) Rules, 1986 and the same is held to be illegal in the impugned judgment. Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. Needless to say that the statutory provisions are binding on everybody concerned with the Statute and non- compliance of the mandatory requirement vitiates everything.
13. Law is also well settled that whenever any action of the authority is in violation of the provisions of the statute or the action is constitutionally illegal, it cannot claim any sanctity in law, and there is no 9 obligation on the part of the Court to sanctify such an illegal act. Wherever the statutory provision is ignored, the Court cannot become a silent spectator to such an illegality and it becomes the solemn duty of the Court to deal with the person(s) violating the law with heavy hands. (See R.N. Nanjundappa Vs. T. Thimmaiah & Anr., AIR 1972 SC 1767, Sultan Sadik Vs. Sanjay Raj Subba & Ors., AIR 2004 S.C. 1377)
14. Now, the question arises as to whether the construction activities undertaken for expansion of the project without adhering to the provisions of EIA Notification, 2006 can be regularized on the basis of Office Memorandum dated 16.11.2010 (Annexure-32). In view of the above settled legal position, the answer is certainly in the negative.
15. This issue can be looked at from a different angle. Perusal of Office Memorandum dated 16.11.2010 does not reveal under which provisions of any environmental statute, such Office Memorandum was issued. Neither in the Writ Petition nor in the Review Petition the traceability of such Office Memorandum to any statutory provision is indicated. Violation of any of the provisions of the statute cannot be regularized by an Office Memorandum unless such a power is vested with any authority under a statute.
16. Further, the Office Memorandum dated 16.11.2010 nowhere states that it is applicable retrospectively. Therefore, in absence of such stipulation, the Office Memorandum is applicable only prospectively even if 10 assuming that the same has the sanction in law. In the instant case, pursuant to Office Memorandum dated 16.11.2010, the petitioner made an application for consideration of proposal involving violation of the Act, 1986 or EIA Notification, 2006/CRZ Notification, 1991 for the first time only under Annexure-33 on 22.11.2010 and subsequent reminder on 07.12.2010 and 21.12.2010. By that time, the terms of reference was withdrawn and the public hearing proceeding held in respect of the proposed expansion was cancelled. Hence, the office Memorandum dated 16.11.2010 has no application to the case of the petitioner.
17. Even assuming for the sake of argument that any benefit was extended to a similarly situated Company, namely, Jindal Power Limited under the Office Memorandum dated 16.11.2010, the petitioner has no legal right to claim similar benefit for the reason that there is no concept of negative equality.
A party cannot claim that if something wrong has been done in any case, similar direction should be given for doing the wrong again. No illegality should be allowed to perpetuate under the shelter of Article 14 of the Constitution. Article 14 does not envisage for negative equality, and no one can be permitted to take benefit of negative equality.
18. In Sneh Prabha (Smt.) & Ors. Vs. State of U.P. & Anr., AIR 1996 SC 540, the apex Court held as follows:-
"It would thus be seen that no discrimination, much less invidious discrimination, was meted out to 11 the appellant. Even if a benefit is wrongly given in favour of one or two, it does not clothe with a right to perpetrate the wrong and the Court cannot give countenance to such actions though they are blameworthy and condemnable. Equality clause does not extend to perpetrate wrong nor can anyone equate a right to have the wrong repeated and benefit reaped thereunder."
19. The apex Court in Kastha Niwarak G.S.S.Maryadit, Indore Vs. President, Indore Development Authority, (2006) 2 SCC 604, held as under:-
"So far as the allotment to non-eligible societies is concerned even if it is accepted, though specifically denied by the Authority, to be true that does not confer any right on the appellant. Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality. (See Union of India Vs. International Trading Co. (2003)5 SCC 437)"
20. In Maharaj Krishan Bhatt & Anr. Vs. State of Jammu and Kashmir & Ors., (2008) 9 SCC 24, the apex Court held that there can be no two opinions about the legal proposition that Article 14 or Article 16 of 12 the Constitution of India cannot be invoked and pressed into service to perpetuate illegality.
21. In Kerala State Electricity Board Vs. Saratchandran. P & Anr., AIR 2009 SC 191, the apex Court held that Article 14 is a positive concept. Provisions of Article 14 cannot be invoked only because some illegality has been committed by an employer as a result whereof some employee has obtained benefit. The Constitutional Scheme of equality clause would apply only in a case where the parties are similarly situated, but no equity can be claimed on the basis of an illegality.
22. Since Article 14 of the Constitution does not envisage for negative equality, even if, under Office Memorandum dated 16.11.2010 Jindal Power Limited has got certain benefit it does not confer any right on the petitioner to claim such negative equality.
23. Law is well settled that writ jurisdiction is discretionary in nature and must be exercised in furtherance of justice. The Court has to keep in mind that its order should not defeat the interest of justice nor it should permit an order to secure dishonest advantage or perpetuate an unjust gain nor approve an order which has been passed in contravention of the statutory provisions. (See Champalal Binani Vs. CIT, West Bengal & others, AIR 1970 SC 645; K.D.Sharma Vs. Steel Authority of India Ltd. & Ors., (2008) 12 SCC 481, 2008 AIR SCW 6654).
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24. The apex Court in Karnataka State Road Transport Corporation v. Ashrafulla Khan & others, AIR 2002 SC 629, held that the High Court under Article 226 of the Constitution is required to enforce rule of law and not pass an order or direction which is contrary to what has been injuncted by law.
25. For the reasons stated in the foregoing paragraphs, the Review Petition is dismissed.
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B.N.Mahapatra, J.
V. Gopala Gowda, C. J. I agree. .
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Chief Justice
Orissa High Court, Cuttack
Dated 19th January, 2012/ssd/sss/skj