Chattisgarh High Court
(Deleted) Forest Right Committee ... vs Union Of India on 2 May, 2024
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 1346 of 2016
1 - Forest Right Committee Ghatbarra thorugh its President Banas kumar S/o Shri
Sundar Sai, Aged About 40 years, R/o Village Ghatbarra, Tehsil Udaypur, District Sarguja
Chhattisgarh, Chhattisgarh
2 - Hasdeo Arand Bachao Sangharsh Samiti, through its Covenor Umeshwar Singh Armo
S/o Shri Siyambar Singh, Aged About 35 Years, R/o Village Jampani, Post Madanpur,
Tehsil Podi, District Korba Chhattisgarh, District : Korba, Chhattisgarh
3 - Jainandan Singh Porte S/o Shri Sukalu Ram, Aged About 40 Years, R/o Village
Ghatbarra, Tehsil Udaypur, District Sarguja Chhattisgarh, District : Surguja (Ambikapur),
Chhattisgarh
---- Petitioners
Versus
1 - Union of India Through Secretary, Ministry of Environment and Forest, Government of
India, Paryawaran Bhawan, C.G.O. Complex Lodhi, Road, New Delhi, 11003, Delhi
2 - Union of India, through Secretary, Ministry of Tribal Affairs, Government of India,
Shastri Bhawan, New Delhi, 110001, Delhi
3 - State of Chhattisgarh through Secretary, Department of Forest, Mantralaya, Naya
Raipur Chhattisgarh, District : Raipur, Chhattisgarh
4 - Distrcit Level Forest Rights Committee (DLC) Sarguja, through O/o. Collector (Tribal
Welfare), Ambikapur, District Sarguja Chhattisgarh, District : Surguja (Ambikapur),
Chhattisgarh
5 - Rajasthan Rajya Vidyut Utpadan Nigam Ltd., Vidyut Bhawan, Jyoti Nagar Janpath,
Jaipur Rajasthan,, District : Jaipur, Rajasthan
---- Respondents
(Cause-title taken from Case Information System)
02-05-2024 Ms. Shalini Gera, Mr. Amit K. Verma and Ms. Anushri Rajput,
Advocates for the petitioners.
Mr. Sumit Singh, Advocate for respondents No.1 and 2.
Mr. Santosh Bharat, Panel Lawyer for the State/respondents No.3
and 4.
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Dr. N.K. Shukla, Senior Advocate with Ms. Priya Mishra, Advocate for
respondent No.5.
I.A. No.10/2023 (application for amending the petition)
Learned counsel for the petitioners have submitted that the present
petition has been filed against the order dated 08-01-2016 issued by
respondent No.4 and for protection of the rights to the petitioners granted
under the Scheduled Tribes and Other Forest Dwellers (Recognition of
Forest Rights) Act, 2006 (hereinafter called as 'Forest Rights Act').
It is submitted by the petitioners that the village Ghatbarra comprises
mostly of triable population and have granted community rights under the
provisions of Forest Rights Act, through order No.10378/a-19(1) 2012-13.
On 08-01-2016 an order is issued by respondent No.4 that forest rights
granted to village Ghabarra is cancelled. To protect the forest and
biodiversity and the rights and duty to the villagers they moved their
representation on 26-02-2016 to various authorities including organizing
protest against the said order and the memorandum were submitted
before the various authorities, higher authorities also. When the authorities
have not responded, they have filed the instant petition.
In the instant petition application for grant of interim relief has been
dismissed by the Coordinate Bench of this Court vide order dated 30-09-
2022. Thereafter, the order dated 30-09-2022 was challenged by the
petitioners before the Hon'ble Supreme Court by filing Special Leave
Petition (Civil) No.18103/2022. The said special leave petition came up for
hearing before the Hon'ble Supreme Court on 16-10-2023 and the same is
decided along with another petition, i.e. Civil Appeal No.4395/2014 as
Rajashan Rajya Vidyut Utpadan Nigam Limited Vs. Sudiep Shrivastava
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and others. It has been submitted before the Hon'ble Supreme Court ;that
the application for amendment filed before the High Court which is
pending. While passing the order dated 16-10-2023 the Hon'ble Supreme
Court has observed in para 4 of its judgment that:-
"4. Since the writ petition under Article 226 of the Constitution is
pending before the High Court, it would be appropriate and
proper to relegate the petitioners to pursue their rights and
remedies in accordance with law. Since the application for
interim relief in IA No 5 of 2022 was not considered by the High
Court for the reasons which have been indicated above, we
clarify that it will be open to the petitioners to move an
application for seeking interim relief. The above liberty is
subject to such objections which the contesting respondents
may have to the grant of interim relief. This Court has not
expressed any opinion on the merits of the challenge before the
High Court."
It is further submitted by learned counsel for the petitioners that
during pendency of this writ petition and without settlement of any
community forest rights of Ghatbarra village respondent No.5 applied for
permission to start mining in phase II forest area. The respondent No.1
Ministry of MoEFCC, granted approval to commence Phase II mining
operations in the balance forest area of 1136 hectares vide order dated
02-02-2022 (Annexure -P/23) and consequently, respondent No.3/State
has also granted permission for diversion of 1136 hectares of forest land
to start Phase II mining operations in the remaining forest area, vide order
dated 25 -03-2022 (Annexure-P/24). The APCCF granted permission vide
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order dated 05-05-2022 to the respondent No.5 to fell 7960 trees in 43.63
hectares of forest land in Phase II mining area which completely
overlapped forest area in the CFR Title which is subject to the present writ
petition.
It is also submitted by learned counsel for the petitioners the order
dated 02-02-2022 passed by the MoEFCC granting permission for Phase
II mining in 1136 hectares of forest land and second order of the State
Govt. passed on 25-03-2022 and 05-05-2022 has been passed without
prior settlement of forest rights in that area which is violation of Section
4(5) of the Forest Right Act as well as the Forest (Conservation) Rules of
2003. It is further submitted that before granting of final approval the
settlement of forest rights and approval of Gram Sabhas concerned must
be considered before grant of final approval. Learned counsel for the
petitioners further submits that by filing the application I.A.No.3/2022 filed
on 06-05-2022 the petitioners brought to the notice of this Court the order
dated 02-02-2022 and 25-03-2022 passed by the State Government with
respect to diversion of 1136 hectares of forest land for mining. He would
also submitted that an application for grant of ad-interim relief, I.A.
No.4/2022 filed on 06-05-2022 the petitioner have stated that operation of
abovementioned orders would destroy the forest rights of the petitioners
and it would render the instant writ petition infructuous and prayed for
grant of ad-interim relief. In these I.As. no effective hearing could take
place and on 27-09-2022 tree felling and forest destruction started. On 28-
09-2022 the petitioners filed another I.A. seeking interim relief and prayed
that the respondents be restrained from felling of trees and from further
destruction of forests of village Ghatbarra. Vide order dated 30-09-2022
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the Coordinate Bench of this Court has denied the interim relief and it was
pointed out that the petitioners had not challenged the relevant orders
permitting mining in the said forest land, viz. orders dated 02-02-2022, 25-
03-2022 and 05-05-2022.
The order dated 30-09-2022 was challenged by the petitioners before
the Hon'ble Supreme Court by filing Special Leave Petition (Civil)
No.18103/2022 which was came up for hearing on 16-10-2023 along with
Civil Appeal No.4395/2014 and after hearing the parties the SLP(C)
No.18103/2022 is disposed of with certain observations made in para 4 of
the order dated 16-10-2023. It was submitted before the Hon'ble Supreme
Court during course of the hearing that amendment application filed before
this Court is pending. The petitioners are relegated to this Court to pursue
their rights and remedies in accordance with law. Since the Coordinate
Bench of this Court, while passing the order dated 30-09-2022 observed in
its order that the orders dated 02-02-2022, 25-03-2022 and 05-05-2022
have not been challenged and further before the Hon'ble Supreme Court
the non-challenge of the aforesaid orders were raised and the parties are
relegated to this Court to pursue their remedies, the petitioners are
claiming amendment in their writ petition with respect to challenge these
three orders and the ground of challenge in the following manners :-
"17. The petitioners prays that in order to challenge the validity of the said
orders dated 2.2.2022, 25.3.2022 and 5.5.2022, the following grounds
may be incorporated:
"9(v) For the reason that the approval of the Central Government u/s
2 of the Forest Conservation Act 1980 dated 15.03.2012 was set
aside as a necessary implication of the NGT dated 24.03.2014, as it
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sets aside the MoEF order dated 23.06.2011 (Annexure P-27). Till
date, there is no new approval u/s 2 of the FCA for the entire forest
area of 1898.328 ha. Without such an approval, no mining can be
permitted in the forest area under the PEKB coal block, and thus the
orders of the R-1 Respondent Ministry, MoEFCC dated 2.2.2022
allowing commencement of Phase II mining in PEKB and
consequential orders of the State government dated 25.03.2022 and
5.5.2022 diverting forest land for mining purposes are bad in law and
illegal.
9(vi) For the reason that section 4(5) of the FRA 2006 specifically
prohibits any eviction or removal of forest dwellers from forest land
without the complete settlement of forest rights on that forest land.
Since community forest rights have not yet been settled with respect
to the claims of the Gram Sabha of village Ghatbarra, the three above
orders dated 02.02.2022, 25.03.2022 and 05.05.2022 are in violation
of the FRA, and hence, illegal and non est.
9(vii) For the reason that the Forest (Conservation) Rules of 2003 (as
applicable at the time of the orders dated 02.02.2022, 25.03.2022
and 05.05.2022) clearly stipulate that the final approval of the Central
Government for diversion of forest land for non-forestry purposes
under section 2 of the FCA can only be made after the settlement of
forest rights over the concerned forest land, and the consent of the
Gram Sabhas has been obtained. This is evident in the following
rules-
Rule 6. "Submission of proposal seeking approval of the
Central Government under section 2 of the Acts
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..........
(3)(e) The District Collector shall-
(i) complete the process of recognition and vesting of forest rights in accordance with the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) for the entire forest land indicated in the proposal;
(ii) obtain consent of each Gram Sabha having jurisdiction over the whole or a part of the forest land indicated in the proposal for the diversion of such forest land and compensatory and ameliorative measures, if any, having understood the purposes and details of diversion, wherever required; and
(iii) forward his findings in this regard to the Conservator of Forests;"
Rule 8. "Submission of report on compliance to conditions stipulated in the in-principle approval and grant of final approval ......
(g) in case the Conservator of Forests finds that the compliance report is complete in all respect, he shall forward such report along with the report on completion of the process of recognition and vesting of forest rights and consent of the each Gram Sabha received from the District Collector referred to in sub-clause (f) of sub-rule (3) of rule 6, to the Nodal Officer within a period of fifteen days of its receipt from the Divisional 8 Forest Officer:
Provided that in case the Conservator of Forests finds that the compliance report is incomplete, he shall communicate the shortcoming or shortcomings in the compliance report to the User Agency and the Divisional Forest Officer within a period of fifteen days of its receipt from the Divisional Forest Officer,"
9(vii) For the reason that by way of compliance with Rule 6(3)(e) of the Forest Conservation Rules of 2003, the Handbook issued by the Respondent Ministry R-1 contains detailed set of forms to be filled out by the District Collector (Annexure P-29) that certifies, inter alia, that
(a) the complete process of recognition and vesting of forest rights under the FRA, 2006 has been carried out for the entire forest land proposed for diversion.
(b) the proposal for such diversion (with full details of the project and its implications, vernacular/ local language) have been placed before each concerned Gram Sabha or forest-dwellers, who are eligible under the FRA, 2006;
(c) each of the concerned Gram Sabha(s), has certified that all formalities/ processes under the FRA have been carried out, and that they have given their consent to the proposed diversion and the compensation and ameliorative measures, if any, having understood the purpose and details of proposed diversion.
(d) the discussion and decisions on such proposals had taken pace only when there was a quorum of minimum 50 % of the members of Gram Sabhas present
(e) the diversion of forest land for facilities managed by the 9 Government as required under Section 3 (2) of tine FRA have been completed and the Gram Sabhas have given their consent to it.
As no such certificate by the District Collector has been prepared in the instant case, no approval or order for diversion of forest land is valid, and hence, the orders dated 02.02.2022, 25.03.2022 and 05.05.2022 are invalid and illegal.
9(viii) For the reason that the claims of the Ghatbarra Gram Sabha under sections 3(1)(d) with respect to water bodies, 3(1)(i), 3(1)(k) and 3(1)(I) have neither been recognized, nor have they been rejected by the District Level Committee. In respect of 3(1)(i), Rule 12B(3) of the Forest Rights Rules, 2008 specifically entrust the DLC with the responsibility of settling these rights -
"The District Level Committee shall ensure that the forest rights under clause (i) of sub-section (1) of Section 3 relating to protection, regeneration or conservation or management of any community forest resource, which forest dwellers might have traditionally been protecting and conserving for sustainable use, are recognized in all villages with forest dwellers and the titles are issued."
18. The Petitioners pray that in order to challenge the validity of the said orders dated 2.2.2022, 25.3.2022 and 5.5.2022, the Reliefs Prayed may be amended to include the following:
"10(iv). Set aside the order dated 02.02.2022 issued by Respondent R-1, and the consequential orders dated 25.03.2022 and 05.05.2022 issued by Respondent State Government R-3.10
10(v). Direct the DLC to expeditiously verify and vest the remaining community forest rights claims of the village Ghatbarra as made in their claim application dated 12.6.2013."
Learned counsel for the petitioners would further submits that the proposed amendments have been necessitated by the subsequent developments and do not change the basic character of the instant writ petition. No prejudice is caused to the respondents since the orders dated 02-02-2022 and 25-03-2022 are sub-judice before the Hon'ble Supreme Court in Civil Appeal No.4395/2014 and WPC No.510/2023. It is further submitted that the amendments sought by the application in the writ petition are clarificatory in nature. The respondents have rights consequential amendment in their reply or to file additional reply if the same is being allowed and they have every right to defend their case and therefore, they may be permitted to carry out the necessary amendment in the writ petition.
Learned counsel for the respondent No.5 would submit that by way of proposed amendments the petitioners seeks to incorporate the documents which has been filed along with I.A. No.3 dated 06-05-2022. Unless the petitioners press that I.A. No.3 and the documents are become the part of the writ petition it cannot be presumed that the documents has been made part of the writ petition. He would further submit that the application I.A. No.3 dated 06-05-2022 is for taking additional facts on record which refers to the document Ex.-P/23 and P/24 which are the orders dated 02-02- 2022 and 15-03-2022.
In the earlier hearing Mr. Mukul Rohtagi, learned Senior Advocate would submit that the petitioners got rights of forest dwellers in 2012 that 11 was challenged in the National Green Tribunal (hereinafter called as 'the NGT') and that was set aside by the NGT in the year 2014. The order passed by the NGT was challenged before the Hon'ble Supreme Court in appeal. The Hon'ble Supreme Court by the order dated 28-04-2014 granted interim relief that there will be stay of the orders by which the works which commenced was suspended by the NGT. In other words the stay of the NGT was stayed by the Hon'ble Supreme Court by order dated 28-04-2014. The respondent No.5 commenced mining thereafter under the orders of the Hon'ble Supreme Court. Suffice to say that while the NGT passed the order suspending the mining activities the NGT has directed the respondent to get fresh permission and fresh biodiversity reports etc. then only recommence their mining activities. Though in the passage of 10 years before the Hon'ble Supreme Court the interim order continued the respondent No.5 worked under the direction of the NGT and when their appeal came up for hearing before the Hon'ble Supreme Court on 16-10-2023 the Hon'ble Supreme Court passed the order that since the order of the NGT, the Ministry of Environment, Forest and Climate Change (MoEF&CC) has granted approval for commencing Phase II mining operation for the Parsa East and Kete Basan (PEKB) Coal Block on 2 February 2022. Thereafter, the State of Chhattisgarh has on 25 March 2022 accorded permission for coal mining and for non-forest activity in respect of the Parsa East and Kete Basan Coal Block comprising 1136 hectares. Further observed that the above facts are not in dispute and has ordered that since the order of the NGT has resulted in the above orders of MoEF&CC dated 2 February 2022 and of the State of Chhattisgarh dated 25 March 2022, Mr. A.N.S. Nadkarni, learned Senior counsel 12 appearing on behalf of the appellant states that the appeal is not pressed and then the appeal was accordingly disposed of. He would further submit that the work of phase-I was exhausted under the cover of the interim order passed by the Hon'ble Supreme Court and thereafter orders dated 02-02-2022 and 25-03-2022 are passed approving the permission of mining for phase II. Since the respondent No.5 has obtained fresh permission for phase II, he did not therefore, prays the appeal before the Hon'ble Supreme Court because the old permission was suspended by the NGT which was suspended by the Hon'ble Supreme Court and then that matter is over. The later part that arose from the present proceeding are present before the Court. The Special Leave Petition (Civil) No.18103/2022 arose against the order dated 30-09-2022 in WPC No.1346/2016, the Single Judge declined to entertain the interim relief application on the ground that the proceedings were pending before this Court, but the order dated 02-02-2022 and 25-03-2022 is challengeable before the NGT and are not challengeable before the High Court. The petitioners have rights to file appeal before the NGT against the order granting fresh approval. The mining is to somehow challenge the order dated 02-02-2022 and 25-03-2022 but these two orders passed MoEFCC granting approval for mining area is challengeable in NGT. He would also submit that respondent No.5 have right to cut trees under the mining plan with the condition to put 10 times plantation of trees. Therefore, their purpose to amend and to challenge these orders in order to obviate the result of the appeal which they should prefer before the NGT. The writ petition is filed in the year 2016 and they are now wantingto amend the writ petition and want to bring two things, i.e., challenge the order dated 13 02-02-2022 and 25-03-2022 and vesting of the remaining community forest rights claims fo the village Ghatbarra as made in their claim application dated 12-06-2013 and therefore the scope of the writ petition is entirely different from which now introduced. The amendment would not be granted for the simple reason that the order which they wish to impugn are orders challengeable before the NGT under Section 16 of the NGT Act 2010 and secondly in the while before the Hon'ble Supreme Court in last so many years the petitioners have not secured any orders and they made innocent statement that they will go and amend their writ petition, therefore the proposed amendments are not liable to be allowed.
In the earlier hearing Mr. Naman Nagarath, learned counsel for respondent No.5 would submit that merely because the petitioners have got certain rights does not act as the perpetual injunction in their favour so as to stop all activities, purpose of act is only even those who have been ousted they also needs to be recognized so that they may also be compensated. The petitioners have claimed in their writ petition that the order dated 08.01.2016 (Annexure-P/1) by which the rights of the petitioners is snatched away ultimately the relief would be that they would be entitled for certain compensation for the reason that they have certain rights over the forest land. The orders dated 02.02.2022 and 25.03.2022 are passed in consequence of the NGT's order.
Before adverting to the rival contentions put-forth by the either sides it would be required to consider the occasion arises for the amendment in the pleadings of the writ petition.
The present writ petition has been filed on 11 May, 2016 with the pleading and prayer to set aside the order dated 08.01.2016 issued by 14 respondent No.4 and to hold that the rights granted under the Scheduled Tribes and Other Traditional Dwellers (Recognition of Forest Rights Act), 2006 cannot be cancelled or revoked.
In the present case it is the pleading of the petitioners that they have been granted forest rights under the Forest Rigths Act by order No.10378/a - 19(1) 2012-13, but vide order dated 08.01.2016 (Annexure- P/1) the forest rights of the petitioners have been cancelled. Thereafter the petitioners have approached before this Court to protect their forest rights. Although there is no interim order in favour of the petitioners, but they are pursuing their remedy by filing various applications either in the Court or before the appropriate authorities for redressal of their grievances. During pendency of the writ petition before this Court on 02.02.2022 the respondent No.1, Ministry of Environment, Forests and Climate Change (MoEFCC) granted approval to commence Phase - II mining operations in the balance forest area of 1136 hectares 6 years ahead of schedule. Subsequently, the State of C.G. has also granted approval for diversion of 1136 hectares of forest land to commence Phase- II mining operations in the remaining forest area vide order dated 25.03.2022. In furtherance thereof the APCCF also granted permission vide order dated 05.05.2022 to respondent No.5 to fell 7960 trees in 43.63 hectares of forest land in Phase - II mining area.
Since these three orders, i.e., orders dated 02.02.2022, 25.03.2022 and 05.05.2022 have been passed during pendency of the writ petition which give cause of action to the petitioners to challenge the orders by carrying out the amendment in the pleadings of the writ petition for which the application for amendment in the writ petition has been filed by the 15 petitioners.
It is well settled that the Court must be liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparably. It is always open to the Court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation.
In the matter of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Another, reported in 2022 SCC OnLine SC 1128, in para 22, 26, 27 and 29 of the judgment the Hon'ble Supreme Court has held as under :-
"22. It would be useful to also notice the observations of this Court in, Pirgonda Hongonda Ptil v. Kalgonda Shidgonda Patil, 1957 SCR 595 : AIR 1957 SC 363, wherein this Court considered an objection to the amendment on the ground that the same amounted to a new case and a new cause of action. In this case, this Court laid down the principles which would govern the exercise of discretion as to whether the court ought to permit an amendment of the pleadings or not. This Court approved the observations of Batchelor, J., in the case of Kisandas Rupchand v. Rachappa Vithoba Shilwant reported in ILR (1909) 33 Bom 644, when he laid down the principles thus:
"10. ...... "All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties .... but I refrain from citing further authorities, as, in my opinion, they all 16 lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become bared by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same : can the amendment be allowed without injustice to the other side, or can it not." ...."
26. But undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts, this Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of statutory period of limitation.
27. In this behalf, in A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96 : (1996) 1 SCR 796, this Court held thus:
"7. ..... a new case or a new cause of action particularly when a suit on the new case or cause of action is barred:
Weldon v. Neale [[L.R. ] 19 Q.B. 394]. But it is also well recognised that where the amendment does not constitute the 17 addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation:......."
29. In Pankaja v. Yellappa (dead) by lrs., (2004) 6 SCC 415, this Court held that it was in the discretion of the court to allow an application under Order VI Rule 17 of the CPC seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation. The Court noticed that there was no absolute rule that the amendment in such a case should not be allowed. It was pointed out that the court's discretion in this regard depends on the facts and circumstances of the case and has to be exercised on a judicial evaluation thereof. It would apposite to notice the observations of this Court in this pronouncement in extenso. The principles where laid down by this Court thus:
"12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application.
13. But the question for our consideration is whether in 18 cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments.
14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case whee a relief is barred because of limitations an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. I the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.
xxx xxx xxx
16. This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board [(2004) 3 SCC 392]. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the 19 discretion that is vested with the court in allowing or disallowing such amendment in the interest of judtice.
xxx xxx xxx
18. We think that the course adopted by this Court in Ragu Thilak D. John case [ (2001) 2 SCC 472] applies appropriately to the facts of this case. The courts below have proceeded on an assumption that the amendment sought for by the appellants is ipso facto barred by the law of limitation and amounts to introduction of different relief than what the plaintiff had asked for in the original plaint. We do not agree with the courts below that the amendment sought for by the plaintiff introduces a different relief so as to bar the grant of prayer for amendment, necessary factual basis has already been laid down in the plaint in regard to the title which, of course, was denied by the respondent in his written statement which will be an issue to be decided in a trial. Therefore, in the facts of this case, it will be incorrect to come to the conclusion that by the amendment the plaintiff will be introducing a different relief."
Hon'ble the Supreme Court in the matter of M/s. Estralla Rubber Vs. Dass Estate (Private) Ltd, reported in 2001 (8) SCC 97 held that mere delay in making the amendment application itself is not enough to reject the application for amendment, unless a new case is made out or serious prejudice is shown to have been caused to the other side so as to take away any accrued right.
The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of 20 limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court. Where amendment is found to be necessary for promoting the ends of justice and not for defeating the same, the application should be allowed.
As has been held in the matter of Radhika Devi Vs. Bajrangi Singh and others, reported in AIR 1996 SC 2358 and Dondapati Narrayana Reddy Vs. Duggireddy Venkatanarayana Reddy, reported in (2001) 8 SCC 115 it is settled that if a right accrues in favour of a party as the order impugn has not been challenged in time the said right cannot be taken away by seeking amendment in pleading. Further, normally amendment is not allowed if it changes the cause of action, but where the amendment does not constitute the addition of a new cause of action, or raises a new case, but amounts to not more than adding to the facts already on record, the amendment should be allowed even after the statutory period of limitation.
In G. Nagamma & Ors. Vs. Siromanamma & Anr., reported in JT 1998 (4) SC 484, the Hon'ble Supreme Court observed that in an application for amendment, even an alternative relief can be sought; however, it should not change the cause of action or materially affect the relief claimed earlier. The Court may to certain extent allow the conversion of the nature of the suit provided it does not give rise to an entire new cause of action.
In the matter of Pithanee Suryanarayana and Another Vs. Repaka 21 Venkata Ramana Kishore and Others, reported in (2009) 11 SCC 308 it was held by the Hon'ble Supreme Court that court holds the power to allow such amendment provided: (i) application is bonafide, (ii) does not cause injustice to other side, (iii) does not affect the right(s) already accured to the other side and the amendment should not change the basic structure of the proceeding.
While allowing the prayer for amendment of pleadings the court should avoid hypertechnical approach.
The respondents raised objection in proposed amendments on the ground that the three orders which the petitioners want to challenge by way of amendment in this petition is appeallable before the NGT under Section 16 of the NGT Act would not be hurdle to incorporate the amendment in the present writ petition. The petitioners simply inserting the proposed amendment in their writ petition. The respondents are very well having their right to deny the pleadings and the prayer and may also raise their objection regarding maintainability of the writ petition if the proposed amendment is permitted to be incorporated in the writ petition which ultimately become a part of the pleadings and prayer. It is foreign to consider the merits of the amendment at the stage of considering the amendment application in the pleadings of the writ petition except while it changes the nature of writ petition. The merits of the amendment are to be examined only after incorporating the amendment in the pleadings and replied by the opposite party.
The petitioners would further submit that the rights of the villagers under the Scheduled Tribes and other Forest Dwellers (Recognition of 22 Forest Rights) Act, 2006 were protected by the statute itself and on their application partial rights were granted which have been withdrawn by the impugned order dated 08-01-2016 but for the remaining rights they are claiming since then by their application dated 12-06-2013 and the authorities have not decided their claim. Therefore, they want to amend the prayer for that also as para 10(v) in prayer column of the writ petition.
The present writ petition is filed on 11-05-2016 and on the date of filing of the writ petition, the cause of action for claim was already exist on that day itself because, the part of the claim which was granted earlier has been withdrawn and therefore, there was a threat on their right on that day itself when their rights have not been granted or when the partially granted rights have been withdrawn, the petitioners may claim at that time itself. In the opinion of this Court, permitting incorporation of new prayer as para 10(v) of prayer clause of writ petition as claimed by the petitioners, would amounts to change the very nature of the petition which take the prayer on the date of filing of the writ petition back under the Doctrine of relation back and entire scenario of the case would be reopened.
One more favourable aspect of the matter in favour of the petitioners is that all these three orders for which the petitioners seeking amendment in the writ petition has come into existence during pendency of the writ petition filed by the petitioners.
Considering the above factual aspects of the case and the law laid down by the Hon'ble Supreme Court, I am of the view that no prejudice will be caused to the opposite side if the petitioners are allowed to carry out the necessary amendments in their writ petition as sought for by them except 23 the prayer for amendment of prayer clause 10(v). In the opinion of this Court the proposed amendment as sought for by them in 10(v) changes the complex of the writ petition and vary nature of the case. The said proposed amendment in the relief clause would take the matter back in the year 2013, that relief is claimed in the interest of public in general of village Ghatbarra which, if allowed, would certainly change the entire complexion of the writ petition.
For the foregoing reasons I.A. No.10 filed by the petitioners for amendment in the writ petition is partly allowed. The petitioners are entitled to carry out the amendment proposed in the pleadings in the writ petition as claimed in para 17 of the application I.A. No.10 and in para 18 upto the amendment in relief clause No.10(iv) and the prayer for amendment of the writ petition in relief clause by inserting a new prayer, i.e. "10 (v)" is rejected.
The respondents are at liberty to make their consequential amendments in their return/reply and may file necessary documents to rebut the amendment of the writ petition. The respondents are also at liberty to raise their objections available to them in the amended part of the writ petition, if so advised. Consequently, I.A. No.10/2023 is partly allowed. The petitioners are directed to carry out the necessary amendment in the writ petition and to file the amended copy of writ petition as per rules. I.A. No.13/2023
This is an application for appropriate orders filed by the petitioners on 21-12-2023.
By way of this application the petitioners prayed for appropriate order 24 to restrain the respondents from further destruction of forest area in PEKB Phase II mining till disposal of the instant writ petition.
As it has already been considered by the Coordinate Bench of this Court vide order dated 30-09-2022 and the application for grant of interim relief (I.A. No.5) has been rejected. The Coordinate Bench has already considered that the orders dated 02-02-2022, 25-03-2022 and 05-05-2022 have not been challenged in the writ petition. The order dated 30-09-2022 was challenged in the Hon'ble Supreme Court in Special Leave Petition (Civil) No.18103/2022. The said SLP has relegated the petitioners to this Court to pursue their rights and remedies in accordance with law. Since the application for interim relief in I.A. No.5 was not considered by this Court on the ground that the above three orders have not been challenged in the writ petition, the Hon'ble Supreme Court have given liberty to the petitioners to move an application for seeking interim relief and such liberty is subject to such objection which the contesting respondents may have to grant of interim relief.
Since the petitioners' application for amendment in the writ petition is partly allowed and they are permitted to carry out the necessary amendment and therefore, at this stage, this Court is not inclined to pass any orders on the application I.A. No.13 which is an application for appropriate orders and consequently, the same is rejected.
Sd/-
(Ravindra Kumar Agrawal) Judge Aadil