National Green Tribunal
Shiv Lal Salvi vs Union Of India Through Secretary ... on 5 September, 2019
Item No. 05 (Through VC)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 95/2017 (CZ)
(M.A. No. 392/2017 & I.A. No. 18/2019)
Shiv Lal Salvi & Ors. Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 05.09.2019
CORAM:
HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Applicant(s): Mr. Saurabh Sharma,
Advocate
For Respondent(s): Mr. Om Shankar Shrivastava,
Advocate
Mr. Rohit Sharma, Advocate
Mr. Arvind Soni, Advocate
Mr. Manoj K. Singh, Advocate
ORDER
I.A. No. 18/2019 This application for condonation of delay has been filed by the applicant with the prayer that the delay in filing the original application, if any, be condoned.
1. The factual matrix of this case is that Environmental Clearance was granted to respondent no. 2 on 09.08.2010 in respect of mining at Dhulkheda, District Bhilwara, Rajasthan. After issuance of Environmental Clearance and being aggrieved of the consequences of such mining, the applicants had filed a PIL before the High Court of Rajasthan at Jodhpur (D.B. Civil Writ Petition(PIL) No. 8188/15) on 03.08.2015.
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2. The Learned High Court had on 05.02.2016 decided the matter as under:
"The cause sought to be agitated in this petition for writ can very well be examined by the National Green Tribunal as per provisions of Sections 14 and 15 of the National Green Tribunal Act, 2010 (hereinafter referred to as 'the Act of 2010'). In view of availability of alternative remedy under the Act of 2010, we are not inclined to entertain this petition for writ. Accordingly, the same is dismissed. The petitioner, however, is at liberty to avail alternative remedy under the Act of 2010. All the objections raised by the respondents in reply to writ petition shall remain open to be contested before the Tribunal."
3. On conclusion of the proceedings before the High Court and the observation made by it in order dated 05.02.2016, the applicants had then filed instant original application on 11.08.2017. The matter came up for consideration before the Tribunal on 10.01.2018. The application was admitted and notices were issued to the respondents. After the service having been affected upon the respondents, the matter was taken up for hearing on 14.03.2019. The Learned Counsel for the applicant had prayed that an application for condonation of delay, an issue raised at that time, may be permitted to be filed within two weeks. The said prayer was allowed by the Tribunal and it was ordered that the applicant may do so within two weeks from today, with advance copy to the other side. Accordingly, an application for condonation of delay (I.A. 18/2019) was filed on 03.04.2019. Subsequently, the case proceeded in 2 respect of filing of reply to the application for condonation of delay and filing of written submissions in that regard.
4. We have heard the Learned Counsels for the parties in respect of the question of delay in filing the original application. At the outset, it would be appropriate to refer to the relevant provisions of law namely Section 14 and 15 of the National Green Tribunal Act, 2010, which reads as under:
"14 Tribunal to settle disputes. -
(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. (2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days."
"15 Relief, compensation and restitution. -
(1) The Tribunal may, by an order, provide,-
(a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
(b) for restitution of property damaged;3
(c) for restitution of the environment for such area or areas, as the Tribunal may think fit.
(2) The relief and compensation and restitution of property and environment referred to in clauses (a),
(b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority."
5. At the cost of repetition, we may mention that after grant of Environmental Clearance on 09.08.2010, a petition by way of public interest litigation was filed before the High Court on 03.08.2015. The Learned High Court was of the view that the cause sought to be adjudicated before it will be examined by the National Green Tribunal, in accordance to the provision of Section 14 and 16 of the NGT Act, 2010. 4
Further, it was ordered that in view of the alternative remedy available under the Act of 2010, they are not inclined to entertain the Writ Petition. However, liberty was granted to avail the alternative remedy under the NGT Act, 2010 and also liberty to the respondents to place all objections taken by them in reply to the writ petition, so as to contest the case before the Tribunal. Consequently, the present original application came to be filed on 11.08.2017. At this juncture, it is pertinent to note that on filing of the original application, the Tribunal had admitted the same on 10.01.2018. It appears that the objections with regard to delay had been raised at subsequent point of time.
6. The Learned Counsel for the respondent, in support of his case, has placed reliance on the case of Aman Sethi Vs. State of Rajasthan and Ors. (Appeal No. 61/2013) decided by the Tribunal on 07.05.2015. It would suffice to say that the case of Aman Sethi (Supra) was an appeal filed before the Tribunal. It was in that light and while dealing the question of delay with regard to an appeal filed before the Tribunal, it was held that the same was filed beyond the total period of 90 days as prescribed under Section 16 of the NGT Act, 2010. Moreover, it was observed that even if the days spent in the proceedings before the High Court were excluded, still the appeal had been filed beyond period to limitation for which no explanation, much less to say, sufficient cause was shown.
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7. A bare look to the reliefs sought by the applicant in this case leaves no room of doubt that he has also prayed in respect of restraining the mining operation; appropriate direction to the Project Proponent to permanently stop mining; blasting, disposal of debris on the agriculture and abadi land of the village Dhulkheda; directions are also sought to assess the damage to the environment of the area; to take action against the polluters as per law and direction to respondent no. 2-Project Proponent to ensure restitution and restoration of the agriculture and village area in Village Dhulkheda, District Bhilwara. Moreover, the applicant has prayed for setting up of a green belt around the mining area and to pay appropriate compensation for causing of damage to the ecology and public health on the basis of Polluter Pays principle.
8. In view of the above, it is amply clear that the relief sought by the applicant for redressal of grievances was on many counts, apart from questioning the Environmental Clearance. In a situation of the present nature and keeping in view the nature of the relief sought, the jurisdiction of the Tribunal can be invoked under the provision of Section 14 as well as Section15 of the NGT Act, 2010. It would be relevant to mention here the observations made by the Hon'ble Supreme Court in the case of Mantri Techzone Pvt. Ltd. Vs. Forward Foundation & Ors. (Civil Appeal No. 5016/2016). Para 45 of the Judgment reads as under: 6
"45. Section 15 of the Act provides power & jurisdiction, independent of Section 14 thereof. Further, Section 14(3) juxtaposed with Section 15(3) of the Act, are separate provisions for filing distinct applications before the Tribunal with distinct periods of limitation, thereby amply 44 demonstrating that jurisdiction of the Tribunal flows from these Sections (i.e. Sections 14 and 15 of the Act) independently. The limitation provided in Section 14 is a period of 6 months from the date on which the cause of action first arose and whereas in Section 15 it is 5 years. Therefore, the legislative intent is clear to keep Section 14 and 15 as self contained jurisdictions."
9. It is also significant to note here that after the conclusion of the proceedings before the High Court, when the applicant had approached the Tribunal the case was heard and the original application was admitted on 10.01.2018. Now it should be finally heard on merits.
10. After having gone through the facts and circumstances of the case and the nature of grievance raised before the Tribunal by the applicant, we are of the considered opinion that it is a case which falls under Section 15 of the NGT Act, 2010. The limitation prescribed for such proceedings is 5 years. As mentioned above, the petition before the High Court was filed within five years of issuance of the Environmental Clearance and thereafter, this original application before the Tribunal was filed in the month of August, 2017.
11. Besides, the High Court had also specifically granted liberty to the applicant so as to approach the Tribunal for redressal of his grievance. It goes without saying that as 7 the issue involved herein is related to environment, which is having its impact over the public at large, this original application has been filed in accordance to the provision of Section 15, we are of the considered opinion that the ends of justice would be served if this application is considered to have been filed within the period of limitation, as prescribed on the Act of 2010. Moreover these proceedings before the High Court and after its conclusion, also before this Tribunal, have been filed with sufficient cause to explain the delay, if any.
In view of the above, we dispose this I.A. No. 18/2019, without any order as to cost.
List this matter for final hearing on 17th October, 2019.
Justice Raghuvendra S. Rathore, JM Dr. Satyawan Singh Garbyal, EM September 05, 2019 SN 8