National Green Tribunal
Ajay Bhonsle vs Ministry Of Environment And Forest ... on 18 November, 2016
BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE) BENCH, PUNE
APPEAL NO.58/2015(WZ)
CORAM:
Hon'ble Dr. Justice Jawad Rahim,
(Judicial Member)
Hon'ble Dr. Ajay A. Deshpande
(Expert Member)
B E T W E E N:
Mr. Ajay Shivajirao Bhonsle,
Khashewadi, Tiroda,
Tal : Sawantwadi,
Distt : Sindhudurg, (Maharashtra)
......Appellant
AND
1. The Ministry of Environment & Forests,
Through : Principal Secretary,
Govt. of Goa, Indira Paryavaran Bhavan,
Vayu Wing, 3rd floor, Aliganj,
Jor Bagh, New Delhi 110 003.
2. Maharashtra Pollution Control Board,
Through : Secretary, Kalpataru Point,
3rd and 4th floor, Sion Matunga Scheme,
Road No.8, Opp. Cine Planet Cinema,
Near Sion Circle, Sion (E),
Mumbai 400 022.
3. The District Collector,
Sindhudurg, Sindhunagari,
Oras, (Maharashtra).
1
(J) Appeal No.58 of 2015 (WZ)
4. M/s. Gogte Minerals,
Through Its Director,
146, Tilak Wadi,
Belgaum-560 006 (Karnataka)
5. M/s. Infrastructure Logistics Pvt. Ltd.
Through : Its Director,
Cidade De Goa,
Vainguinim Beach, Donapaula,
Goa - 403 004.
.....Respondents
Counsel for Applicants
Mr. Nikhil Nayar, & Mr. TVS Raghubendra Sreyas,
And Mr. Sangramsingh R. Bhonsle, Advs.
Counsel for Respondent No.3 :
Mr. Amit Karkhanis, & Aniruddha Tapkire, Advs.
Counsel for Respondent No.3 :
Mr. Amol Ramesh Thorat, & Mrs. Supriya Dangare, Advs.
Counsel for Respondent No.4 :
Mr. Dhruv Mehta, & Mr.Yashraj Singh Deora, Advs.
Counsel for Respondent No.5 :
Mr. Amey Kakodkar, Adv.
ORDER
1. This is one such case where rounds of litigations have been initiated amongst the contesting parties. Present Appeal No.58/2015, which has been initiated by the Appellant under Section 16(g) of the National Green Tribunal Act, 2010 read with section 5(A) of the Environment (Protection) Act, 1986, challengs the order 2 (J) Appeal No.58 of 2015 (WZ) dated 2nd September 2015 passed by the Ministry of Environment, Forest and Climate Change i.e. Respondent No.1 herein. Appellant alleges that the Respondent No.1 while exercising the powers under Section 5 of the Environment (Protection) Act, 1986 merely accepted undertaking of the project proponent i.e. Respondent No.4, wherein it had undertaken not to dump overburden/waste outside the mining lease area without obtaining prior permission from Respondent No.1. Appellant further alleges that the Respondent No.4-Project Proponent had been dumping the overburden/waste outside the mining lease area, which is a grave violation of the Environmental Clearance dated 31st December 2008, granted to the mining activities of Respondent No.4 by MoEF-Respondent No.1. Appellant further alleges that Respondent No.1-MoEF has abducted its statutory functions and acted in a mechanical manner while disposing of the show cause notice issued by MoEF dated 11th May 2015.
2. Appellant submits that he has been raising issues related to Environmental Degradation and consequences due to haphazard and illegal mining activities of Respondent No.4 from time to time and only on verification/inspection of the documents at District Mining Office in 2014-15, he came to be aware of Communication from the District Mining Officer, Sindhudurg dated 12th 3 (J) Appeal No.58 of 2015 (WZ) March 2010 addressed to Tahsildar of Sawantwadi, District Sindhudurg regarding stacking of overburden and rejection at S.No.177/1 at village Ajgaon, Tal. Sawantwadi, District Sindhudurg, which is about 3 k.ms. away from the lease area of the project proponent. It is also submitted that Apex Court in the matter of "Goa Foundation Vrs. Union of India & Ors. (2014) 6 S.C.C. 590" categorically held in para 82 that dumping of minerals outside the lease area of the mining lessees is not permissible under the Mines and Minerals (Development and Regulation) Act, (MMDR) Act and Rules made thereunder. The Appellant is aggrieved by the fact that though the Environment Clearance dated 31st December 2008 clearly stipulates that out of lease area of 34.4812 Ha. mining will be carried out only in 12.16 Ha. and out of balance area, total 5.98 Ha. will be kept for waste dump and inspite of such clear land use defined in the Environment Clearance, the project proponent i.e. Respondent No.4, disposed of mining waste outside the mining lease area nearly 3 k.m. away, without any express permission or sanction of the MoEF. The Appellant contends that the impugned order inasmuch as being silent in respect of illegal dumping is in complete contradiction to the mandate of Hon'ble Apex Court in "Goa Foundation"
judgment and also the violation of Environmental Clearance conditions. Appellant alleges that there is a 4 (J) Appeal No.58 of 2015 (WZ) serious violation of Law and the Environmental Clearance and as such, unauthorised waste dumping activity would result in Environmental Pollution and loss of ecological balance. Respondent No.1 adopted a superficial approach by merely considering the representation of Respondent No.4 without going into the technical aspects, particularly related to possible environmental degradation and damage besides the legal aspects of continuous violation of conditions of Environment Clearance as well as mandate of the Apex Court. And therefore, the Appellant has sought following reliefs :
I) Set aside order dated 2-9-2015 bearing No.J-
11015/1026/2007-IA-II(M) passed by the Ministry of Environment, Forest and Climate Change-Respondent No.1.
II) Direct Respondent No.1 to take action against
Respondent No.4 under Section 5 read with
Section 15 and 16 of the Environment
(Protection) Act, 1986 for illegal dumping on Survey No.177/1 and Sy. No.188 of village Ajgaon, Taluk Sawantwadi, District Sindhudurg. III) Direct the Respondent No.1 to produce the entire record of the enquiry in respect of order dated 2-
9-2015 bearing No.J-11015/1026/2007-IA-II(M) passed by the Ministry of Environment, Forest and Climate Change-Respondent No.1.
3. Responding to this Appeal, Respondent No.4 filed short affidavit in reply, challenging the present Appeal on 5 (J) Appeal No.58 of 2015 (WZ) the question of maintainability in terms of Limitation and principles of res-judicata and constructive res-judicata. Respondent No.4 submits that the present Appeal is baseless and devoid of merits and Appellant is not an aggrieved party. It is submitted that the Appeal is not maintainable on the principles of res-judicata and constructive res-judicata as well as being an abuse of process of Law. Respondent No.4 refers to the earlier litigations and submits that Respondent No.4 have submitted the information related to the mine waste dumps existing outside the mining lease area during earlier legal proceedings before the Hon'ble Apex Court as well as the Tribunal. Respondent No.4 relied on the material information produced on affidavits in those proceedings claiming that the nature of works to be undertaken outside the mines lease area was presented before the Apex Court as well as Tribunal as early as 19th April 2012 where the Tribunal has passed certain orders. It is therefore, contended that the Appellant was fully aware about the existence of such dumps as early as 2012 and he could have raised objection, to such outside dumps in the subsequent proceedings before the Tribunal in Application No.36/2013 before the National Green Tribunal as well as Appeal No.2/2013 before the National Green Tribunal and therefore, the Appellant is barred by raising such 6 (J) Appeal No.58 of 2015 (WZ) contentions of violation, if any, at this latter stage, as he could have raised such contention in the earlier proceedings. He cannot be allowed in law to choose his contentions as per his choice and timing which are clearly barred by principles of res-judicata and constructive res- judicata.
4. Learned Sr. Counsel Shri Dhruv Mehta, strenuously argued on this law point and cited certain judgments of the Apex Court. He contends that the Appellant is trying to re- initiate the legal proceeding against Respondent No.4, in the garb of such Appeal but the Tribunal needs to take a considered view, in view of the fact that, the Appellant has indirectly raising an issue of overburden dumps outside the mine leased area, which was in his knowledge at least since 2012. Besides that, the Appellant is a local resident and the alleged illegal dumps are located along the main road and as such, there cannot be any escape from the inference that the Appellant being Environment Conscious Citizen, cannot be aware of such over burden/waste dump. And, therefore, the Appellant has a clear knowledge of existence of such dumps through the legal proceedings as well as the fact that the dumps are predominately present along the main road of the village, where the Appellant resides and therefore, the Appeal is barred by limitation of time, in 7 (J) Appeal No.58 of 2015 (WZ) terms of Section 16 of the National Green Tribunal Act, 2010.
5. In support of his contentions, learned counsel for Respondent No.4 has cited the following judgments:
1) (1998) 9 SCC 558, Ram Kali Devi Vrs. Manager, PNB, Shamshabad.
2) (2000) 7 SCC 702, in Dilboo (Smt.) (Dead) by Lrs.
& Ors. Vrs. Dhanraji (Smt) (Dead) & Ors.
3) (2013) 10 SCC 765, Popat Bahiru Govarhane & Ors. Vrs. Special Land Acquisition Officer.
4) (2009) 5 SCC 121, SBI Vrs. B.S. Agriculture Industries (I)
5) (2009) 7 SCC 768, Kandimalla Raghavaiah & Co.
Vrs. National Insurance Co. & Anr.
6) (2005) 10SCC 51, in Swamy Almanand & Ors.
Vrs. Sri Ramakrishna Tapovanam & Ors.
7) (2011) 9 SCC 126, Khatri Hotels Pvt. Ltd. & Anr.
Vrs. Union of India & Anr.
8) Appeal No. 1 of 2013 in Ms. Medha Patkar & Ors.
Vrs. MoEF & Ors.
9) (1986) 1 SCC 100, Forward Construction Co. & Ors. Vrs. Prabhat Mandal Andheri & Ors.
10) (2006) 4 SCC 683, in State of Karnataka & Anr.
Vrs. All India Manufacturers Organization & Ors.
11) (2006) 11 SCC 696, Union of India & Ors. Vrs.
Ranbir Singh Rathaur & Ors.
12) (2011) 3 SCC 408, in M. Nagabhushana Vrs. State of Karnataka & Ors.
13) Original Application No. 112/2012 in Goa Paryavaran Savrakshan Sangharsha Samittee Vrs. M/s. H.L. Nathurmal & Ors.
14) (2008) 1SCC 494, in Sarva Shramik Sanghatana (KV) Mumbai Vrs. State of Maharashtra & Ors.
6. Countering this argument, learned counsel Shri Nayyar appearing for the Appellant would emphasise that the present matter is statutory Appeal filed by the 8 (J) Appeal No.58 of 2015 (WZ) Appellant, assailing the order of MoEF-Respondent No.1 dated 2nd September 2015 in respect of mining activities of Respondent No.4 which is issued under Section 5 of the Environment (Protection) Act, 2010. He submits that the show cause notice was issued on 11th May 2015 and the final directions were passed on 29th July 2015. He, therefore, contends that the issues raised by Respondent No.4 related to knowledge of presence of dumps, applicability of the judgment of the Hon'ble Apex Court, as well as applicability of the principles of res-judicata and constructive res-judicata are not relevant in the present Appeal, as this is a separate legal right, the Appellant has invoked under section 16 of the National Green Tribunal Act, against the impugned order of the MoEF.
7. Learned counsel for Appellant further contends that Respondent No.4 cannot expand the scope of the Appeal and misguide the Tribunal in order to link the issues raised in earlier Applications, some of which are before the Hon'ble Apex Court in SLP, as the present proceedings are Appealable proceedings, emanating from particular cause of action i.e. issuance of the impugned order. He therefore, sought to segregate the issues raised in this Appeal viz-a-viz the earlier legal proceedings.
8. He would further contend that Appellant is challenging the impugned order on the ground of legality, 9 (J) Appeal No.58 of 2015 (WZ) propriety or reasonability, because as per his contention, the MoEF has not applied its mind on various technical grounds such as spread of the dump, quantity of the existing waste dump and safeguards taken to avoid environmental consequences. The MoEF has merely relied on the submissions of the Appellant. His contentions on these aspects are to be decided on merits by the Tribunal and cannot be just brushed aside by filing such preliminary objections. He has also relied on judgments, particularly, the prospective and retrospective nature of the Hon'ble Apex Court's orders and issues related to res-judicata.
1) (2016) 2 SCC 36, Prakash and Ors. Vrs. Phulvati & Ors.
2) (2007) 3 SCC 557, in P.V. George & Ors. Vrs. State of Kerala & Ors.
3) (2010) 5 SCC 388, Goan Real Estate and Construction Limited & Anr. Vrs. Uion of India.
4) (2001) 10 SCC 305, V. Purushotham Rao Vrs.
Union of India & Ors.
5) Application No.07(THC)/2014, Janardan Kundlikrao Pharande & Ors. Vrs. MoEF & Ors. (Judgment of this Tribunal).
6) Application No.17(THC)/2013 and Application No.20(THC)/2013 Mr. S.K. Shetye & Anr. Vrs.
MoEF & Ors (Common Judgment of this Tribunal)
9. With this background, it is necessary now to decide whether the present Appeal suffers from Limitation as well as principle of Res-judicata and constructive res-judicata ? 10 (J) Appeal No.58 of 2015 (WZ)
10. The present Appeal has been filed under Section 16 of the National Green Tribunal Act, 2010 which reproduced below :-
Tribunal to have appellate jurisdiction :-Any person aggrieved by :-
(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974.
(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under Section 29 of the Water (Prevention and Control of Pollution) Act, 1974.
(c) directions issued, on or after the commencement of the National Tribunal Act, 2010, by a Board, under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974.
(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977.
(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under Section 2 of the Forest (Conservation) Act, 1980.
(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981.
(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under Section 5 of the Environment (Prevention) Act, 1986
(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 11 (J) Appeal No.58 of 2015 (WZ) safeguards under the Environment (Protection) Act, 1986.
(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986.
(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002.
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.
11. There is no dispute that MoEF had issued show cause notice to Respondent No.4 based on certain alleged non-compliances on 11th May 2015. This show cause notice was issued under Section 5 of the Environment (Protection) Act, 1986. Subsequently, after the completion of proceedings in the show-cause, the MoEF issued the order/direction dated 2nd September 2015 which is impugned in the present Appeal. The directions issued under section 5 of the Environment (Protection) Act, 1986 are appealable before this Tribunal as per Section 16(g) as referred above. The present Appeal is thus, statutory Appeal filed under the provisions of National Green Tribunal 12 (J) Appeal No.58 of 2015 (WZ) Act, 2010. It is well settled that a right of Appeal is a statutory right and the said right is governed by the terms of the statute creating it. Appeal is not inherent right and can be availed only if the statute provides for it. Its nature, character and extent will have to be determined and controlled by the relevant provisions creating the right. It is now settled by the Hon'ble Apex Court in "in S.L.P. (C) No.19020 of 2002) "Shiv Shakti Co-op. Housing Vrs. M/s. Swaraj Developers & Ors." that:-
"An appeal is essentially continuation of the original proceedings and the provisions applied at the time of institution of the suit are to be operative even in respect of the appeals. That is because there is a vested right in the litigant to avail the remedy of an appeal. As was observed in K. Eapen Chako Vrs. The Provident Investment Company (P) Ltd. (A.I.R. 1976 SC 2610) only in cases where vested rights are involved, a legislation has to be interpreted to mean as one affecting such right to be prospectively operative. The right of appeal is only by statute. It is necessary part of the procedure in an action, but "the right of entering a superior court and invoking its aid and interposition to redress the error of the courts below. It seems to this paramount right, part of the progress of the inferior tribunal". The appeal, strictly so called, is one in which the question is, whether the order of the Court from which the appeal is brought was right on the materials which that Court had before it". The right of appeal, where it exists, as a matter of substance and not of procedure .13 (J) Appeal No.58 of 2015 (WZ)
12. With this background, it is therefore, now necessary to deal with the contentions raised by the contesting parties. Shri Dhruv Mehta, learned Sr. Counsel appearing for Respondent No.4 emphatically argued that the impugned order in question relates to mining waste dumps which have been existing since long and the Appellant is fully aware about the existence of the dumps atleast since 2012 and therefore, the Appellant cannot raise any objection to the impugned order issued by MoEF on the point of limitation. He further argued that he has not raised any contention in the earlier litigations before the Hon'ble Apex Court as well as this Tribunal regarding such mining waste dumps and therefore, is a clear case of constructive res-judicata and principle of analogues to it. He relied on the judgments referred above to fortify his contentions and argued that the legal maxim "dura lex sed lex" (the Law is hard but it is the Law) can be applied in the present case. He further contended that the cause of action under the National Green Tribunal Act has been dealt by the Hon'ble Principal Bench judgment in "Medha Patkar and Ors. Vrs. MoEF & Ors" in Appeal No.1 of 2013"
wherein it has been noted that the person who wants environmental justice, needs to be vigilant. He relied on KERR to argue that the information of such waste dumps in 14 (J) Appeal No.58 of 2015 (WZ) the affidavits filed in the earlier rounds of litigation can be deemed as constructive notice whereby the Applicant has gained knowledge of such waste dumps as earliest 2012.
On such counts, he opposed appeal on the preliminary grounds.
13. In response Shri Nikhil Nayyar, learned Advocate appearing for Appellant argued that the statutory authority of MoEF has been bestowed with statutory powers under Section 5 of the Environment (Protection) Act and Rules at the clearance given thereunder. His contention is that after the judgment of Apex Court in "Goa Foundation matter"
dated 21st April 2014, the dumping of mining waste outside the mine lease area cannot be done without the environmental clearance from the MoEF. He gained knowledge of such dump subsequent to this judgment, particularly for mining waste dump at Sr.No.117/1 and thereafter the Appellant has filed complaints with the MoEF. On being aggrieved by the inaction of the MoEF, he had filed an Application under Section 14 of the National Green Tribunal Act, bearing Application No. 14/2015 which came to be disposed of observing that MoEF has initiated action under Section 5 of the National Green Tribunal Act.
14. Appellant further contends that the MoEF has concluded its proceedings in said show cause notice issued to Respondent No.4 which has resulted in issuance of the 15 (J) Appeal No.58 of 2015 (WZ) impugned order that has now been challenged by the Appellant in the present case. And therefore, this is a fresh cause of action which is having a statutory remedy of filing Appeal under Section 16 of the National Green Tribunal Act. Shri Nayyar, further contended that the impugned order has been challenged raising issues of propriety, legality and application of mind involving technical issues. He further argues that the knowledge of the dumps or for that matter any other issue, which was raised in earlier litigations, cannot be linked with, this Appeal as this is an independent and distinct legal remedy provided by the Act against the impugned order. He further argued that MoEF while issuing show cause notice dated 11th May 2015 has referred to complaints and the Respondent No.4 has participated in proceedings before MoEF without raising any of such issue is raised in present Appeal.
15. We have carefully perused the documents placed on record and gone through the arguments of the learned counsel of the parties. We note that the present Appeal has been filed to challenge the order passed by MoEF dated 2 nd September 2015 which was issued in pursuance to show cause notice issued on 11th May 2015 under Section 5 of the Environment (Protection) Act. The National Green Tribunal Act bestows the Tribunal two types of jurisdictions, first, in the form of original jurisdiction under 16 (J) Appeal No.58 of 2015 (WZ) Section 14 where the Tribunal is mandated to settle the disputes and Section 15 where the Tribunal needs to deal with relief of compensation and restitution aspects related to environment. Secondly, the Tribunal has also been bestowed with Appellate Jurisdiction under Section 16 where certain orders of the clearance/directions issued by a statutory authorities can be challenged before the Tribunal. It is manifest from such distinctive sections i.e. Sections 14, 15 and 16 of the National Green Tribunal Act, 2010 that the Tribunal has distinctive jurisdiction in case of any Appeal, challenging the order/direction which can be construed within the scope of Section 16 of the National Green Tribunal Act. It is an admitted fact that the impugned order is a direction under Section 5 of the Environment (Protection) Act and clearly falls under Section 16(g) of the National Green Tribunal Act. As mentioned above, the Appeal under the National Green Tribunal Act is a statutory Appeal and therefore, its nature, character and extent will have to be determined and controlled by the relevant provisions created such a right.
16. We have also perused Rule 14 of the National Green Tribunal (Practice and Procedure) Rules.
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.
17 (J) Appeal No.58 of 2015 (WZ) It is manifest from this provision that the Appeal can only be based on the single cause of action, which in present Appeal arises from the issuance of Order dated 2 nd September 2015 by MoEF. The consequential reliefs, which are linked to such cause of action could be permissible, if necessary.
17. The present Appeal has challenged the impugned order dated 2nd September 2015 and considering the provision of Section 16 of the National Green Tribunal Act, the Appeal which has been filed on record of the Tribunal on 28th September 2015, is within the limitation of 30 (thirty) days provided in Section 16 of National Green Tribunal Act.
18. The interpretation of `person aggrieved' under the provisions of NGT Act has been made in catena of judgments by this Bench as well as by Hon'ble Principle Bench of NGT. It can be abstracted from these judgments held that connotation or description of category of persons as 'persons aggrieved', referred to in Section 16 and 18 of the Act must receive vide large amplitude and shall not be read in constructive or restrictive manner and to the detriment of persons who are entitled to benefit of right. It is now well settled that meaning of word 'aggrieved person' or 'person aggrieved' shall receive very liberal interpretation and shall not be hyper technical to exclude bonafide 18 (J) Appeal No.58 of 2015 (WZ) individual to seek redressal at the hands of Tribunal to protect environment in the large interest of the society.
19. The Appellate jurisdiction of the National Green Tribunal is specified by the National Green Tribunal Act and it will be relevant to refer as per citations given below :
1) Hotel & Restaurant Assn. Vrs. Star India (P) Ltd.
(2006) 13 SCC 753. It is held by Lordship that :
27.TDSAT, therefore, exercises two different jurisdictions viz. one, original and another, appellate. Exercise of its original jurisdiction is an adjudicatory function whereas its appellate function is to hear appeal(s) against an order of TRAI which may or may not essentially be an adjudicatory one.
51. While exercising its original jurisdiction, again with respect, TDSAT should not have made such observations. This Court in K. Kankarathnamma v. State of A.P.[AIR 1965 SC 304 :
(1964) 6 SCR 294] (SCR at p. 298) held: (AIR p. 306, para 3) "... wherever jurisdiction is given by a statute and such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise."
52. It is also well settled that when a power is required to be exercised in a particular manner, the same has to be exercised in that manner or not at all. TDSAT having not exercised its appellate jurisdiction, in our opinion, neither could it have issued any direction nor TRAI could abide thereby. (See Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 : AIR 1978 SC 851] , Commr. of Police v.Gordhandas Bhanji [1952 SCR 135 :
AIR 1952 SC 16] , Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai [(2005) 7 SCC 627] and R.S. Garg v. State of U.P. [(2006) 6 SCC 430 : 2006 SCC (L&S) 1388 : (2006) 7 Scale 405] )
53. We are, however, sure that TRAI while exercising its jurisdiction under sub-section (2) of Section 11 of the TRAI Act shall proceed to exercise its jurisdiction without in any way being influenced by the said observations. It must apply its mind independently.
2) Kothamasu Kanakarathamma Vrs. State of A.P. (1964) 6 SCR 294 & A.I.R. 1965 SC 304.
4. ................The proviso to sub-section (2) prescribes the time within which an application under sub-section (1) is to be made. Section 19 provides for the making of a reference by the Collector and specifies the matters which are to be comprised in that reference. Thus the matter goes to the court only upon 19 (J) Appeal No.58 of 2015 (WZ) a reference made by the Collector. It is only after such a reference is made that the court is empowered to determine the objections made by a claimant to the award. Section 21 restricts the scope of the proceedings before the court to consideration of the contention of the persons affected by the objection. These provisions thus leave no doubt that the jurisdiction of the court arises solely on the basis of a reference made to it. No doubt, the Land Acquisition Officer has made a reference under Section 30 of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the various claimants. Such a reference would certainly not invest the court with the jurisdiction to consider a matter not directly connected with it. This is really not a mere technicality for as pointed out by the Privy Council in Nusserwanjee Pestonjee Khan v. Meer Mynoodeen Khan wullud Meer Sudroodeen Khan Bahadoor [ 6 MIA 134 at 155] wherever jurisdiction is given by a statute and a such jurisdiction is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. This was, therefore, a case of lack of inherent jurisdiction and the failure of the State to object to the proceedings before the court on the ground of an absence of reference insofar as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence.
3) Competition Commission of India Vrs. SAIL, (2010) 10 SCC 744
41. The provisions of Sections 26 and 53-A of the Act clearly depict the legislative intent that the framers never desired that all orders, directions and decisions should be appealable to the Tribunal. Once the legislature has opted to specifically state the order, direction and decision, which would be appealable by using clear and unambiguous language, then the normal result would be that all other directions, orders, etc. are not only intended to be excluded but, in fact, have been excluded from the operation of that provision. The presumption is in favour of the legislation. The legislature is deemed to be aware of all the laws in existence and the consequences of the laws enacted by it. When other orders have been excluded from the scope of appellate jurisdiction, it will not be permissible to include such directions or orders by implication or with reference to other provisions which hardly have any bearing on the matter in issue and thus make non-appealable orders appealable.
4) Raja Soap Factory Vrs. S.P. Shantharaj, (1965) 2 SCR 800 : AIR 1965 SC 1449 20 (J) Appeal No.58 of 2015 (WZ)
5. The High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction: it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction. The High Court is competent to exercise original jurisdiction under Section 105 of the Trade and Merchandise Marks Act 43 of 1958 if it is invested with the ordinary original civil jurisdiction of a District Court, and not otherwise, and the High Court of Mysore not being invested by any statute of under its constitution with that jurisdiction was incompetent to entertain a passing off action.
6. ......... For this exalted claim, there is no warrant in our jurisprudence. Jurisdiction of a court means the extent of the authority of a court to administer justice prescribed with reference to the subject-matter, pecuniary value and local limits. Barring cases in which jurisdiction is expressly conferred upon it by special statutes, e.g. the Companies Act; the Banking Companies Act, the High Court of Mysore exercises appellate jurisdiction alone. As a court of appeal it undoubtedly stands at the apex within the State, but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance.
7. ............. But jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by Section 24(1)(b)(i) arises only if the suit, appeal or proceeding is properly instituted in a court subordinate to the High Court, and the suit, appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court. Power to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court.
20. It is manifest that the impugned order can be challenged in Appeal under the provisions of Section 16 before the National Green Tribunal and further any person aggrieved by such an order may, within a period of 30 (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. Plain reading of such provision can demonstrate that the Appeal is restricted to challenge the impugned order and in no case, it can be 21 (J) Appeal No.58 of 2015 (WZ) linked with any other previous action/litigation, except the relevant consequential action, though the contesting parties have a chequered litigation history. In the present Appeal, the scope of Appeal is strictly limited to limited conspectus of testing the impugned order on its legality, propriety and application of mind, besides principle of natural justice. And therefore, we cannot agree with the contentions of the learned Sr. counsel Mr. Dhruv Mehta regarding the cause of action which according to him, deem to be accrued in 2012. We note that Section 14 of National Green Tribunal Act, 2010, which deals with settlement of a dispute is the unique and distinctive feature of the National Green Tribunal and has in built Limitation clause which can be linked with the cause of action. However, we are conscious of the fact that we are in Appeal proceeding and will be governed strictly by the provisions of the National Green Tribunal Act, related to Appeal under Section 16 of the Act.
21. Another contention related to application of res- judicata and constructive res-judicata and principle analogues thereto, also cannot be considered in the present Appeal as the Appeal is challenging the impugned order issued by the MoEF and the reasoning discussed in above paras related to earlier litigation aspects.
22. In the present case, the earlier proceeding i.e. Application No.14/2015 was disposed of as withdrawn on 22 (J) Appeal No.58 of 2015 (WZ) 3rd September, 2015 in view of the order passed by the MoEF dated 2nd September 2015, by keeping all the issues open. It is evident from the above that the Original Application No.14/2015 which raised the dispute related to environmental significance related to inaction of MoEF regarding the mining waste dumps was disposed of in view of the directions issued by MoEF, which have been challenged in present Appeal and therefore, the disposal of the Original Application No.14/2015 cannot be considered as a decision on merits by this Tribunal and would not operate as res-judicata. The Hon'ble Apex Court in "1999 SCC MP 126, (1999) 2 NO KH 341, (C.R.No. 524/1999) in Rehana Parveen Vrs. Naimuddin Abdul Khalik" has dealt a similar issue, as reproduced below :
"5......It is noticed that the order of the previous case No.36/96 between the parties was passed on the basis of agreement between the parties. Hence, as laid down in Pulavarthi Venkata Subba Rao (Supra) the same was not a decision on merits by the Court; hence would not operate as res judicata and thus would not operate as bar to the consideration of this application for custody of the child, under Guardians and Wards Act. Reference in the above connection may also be made to Baldevdas Shivlal Vrs. Filmistan Distributors (India) Pvt. Ltd., (1969) 2 SCC 201 : AIR 1970 SC 406, Moreover, there is substantial change in the circumstances of the parties as the same to be considered on merits".
23. Decision of the Apex Court in the case of "Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others, 1987 (2) SCC 12" is also relevant, wherein following principles are laid down, which is extracted below: 23 (J) Appeal No.58 of 2015 (WZ)
"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the Page 24 (J) M.A.No.262/15 Appeal No.96/2015(WZ) highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every 10 hour's delay, every second's delay? The doctrine must be applied in a rational common-sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account for mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
24. Under these circumstances, we are not inclined to accept the preliminary objections raised by the Respondent No.4 against the proceedings with this Appeal. The preliminary objections are thus, stands rejected and the main Appeal be listed for hearing.
25. Considering the lapse of the time in dealing with these preliminary objections and the mandate given to the National Green Tribunal to dispose the matter within six months, we feel expedient to expedite the Appeal. However, in the interest of justice, we grant four (4) weeks time to the parties to complete the pleadings.
24 (J) Appeal No.58 of 2015 (WZ)
The matter be listed for final hearing on 20th December 2016.
......................................., JM (Dr. Justice Jawad Rahim) .........................................., EM (Dr. Ajay.A. Deshpande) Date : 18th November, 2016 ajp 25 (J) Appeal No.58 of 2015 (WZ)