National Green Tribunal
Aryavart Foundation vs M/S Ria Cetp Co.Op. Society Ltd on 29 November, 2022
Item No. 10 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Original Application No. 58/2022 (WZ)
I.A. No. 73/2022 I.A. No. 188/2022
Aryavart Foundation
.....Applicant
Versus
M/s Ria CEPT Co-Op Society Ltd & Ors.
....Respondent(s)
Date of hearing: 29.11.2022
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Shri Raj Panjwani, Sr. Advocate along-with Dr. Surendra
Singh Hooda, Advocate
Respondent(s) : Mr. Saurabh Kulkarni, Advocate for R-1/PP
Mr. Vilas Jadhav, Advocate for R-2/MPCB
Mr. Aniruddha Kulkarni, Advocate for R-3/CPCB
ORDER
I.A. No. 188/2022 (WZ)
1. This application has been filed by the Respondent No. 1-M/s. RIA CETP Co. Op. Society Ltd., praying there-in to frame preliminary issues and decide the same on preliminary stage before adjudication of Original Application and also it is prayed that order for constituting of the Joint Committee dated 06.07.2022, be recalled.
2. It is submitted in the said application that the Joint Committee has been constituted without issuing notice to it in breach of the principle of natural justice and that the Respondent No. 2/MPCB has been included as a Member and over-all Co-ordinator of the Joint Committee despite the fact that there were serious allegations made against the Respondent No. 2/MPCB by the Original Applicant for failing to discharge its statutory duties towards CETP operations.
Page 1 of 73. Further, it is stated that M/s. Sudarshan Chemicals ought to have been impleaded in the array of parties because they also discharged significant effluent in the marine disposal system provided by Respondent No. 4 along-with CETP treated effluent, that finally discharges effluent in the creek.
4. The learned Counsel for the Applicant has not filed any written objection against this application but has relied upon the Judgment of Hon'ble Apex Court [(2019) 8 SSC 177], where-in in paragraph nos. 155 to164, following has been quoted:-
"155. The appellants contend that the NGT has no jurisdiction to constitute any committee. The NGT vide its different orders has constituted different committees for submitting reports for different purposes. The Constitution of which committees are sought to be challenged on the ground that the NGT has no jurisdiction to constitute a committee. Similarly, order of the Tribunal directing for constituting a fund, namely, Meghalaya Environment Protection and Restoration Fund has been challenged on the ground that the Tribunal has no jurisdiction to constitute any fund.
156. What are the powers and jurisdiction of the Tribunal given under the National Green Tribunal Act, 2010 has to be looked into to consider the above submission? In so far as jurisdiction of the Tribunal is concerned, we have already noticed Sections 14, 15, and 16 of the Act. Section 19 of the Act deals with procedure and powers of the Tribunal. Section 19 which is relevant for the present case is as follows:
"19. Procedure and powers of Tribunal. - (1). The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.
(2). Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure. (3). The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872. (4). The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;Page 2 of 7
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decision;
(g) dismissing an application for default or deciding it ex parte;
(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;
(j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;
(k) any other matter which may be prescribed. (5). All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973."
157. Sub-section (1) of Section 19 provides that Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure but shall be guided by the principles of natural justice. What sub-section (1) meant to convey is that Tribunal is not shackled with the procedure laid down by the CPC for conducting its proceedings. Sub-section (2) of Section 19 empowers the Tribunal, powers to regulate its own procedure. Section 19(2) confers vide powers on the Tribunal in so far as its procedure is concerned. Section 19(4) vests some powers as are vested in civil court, while trying a suit, in respect of matters enumerated therein. The use of expression "shall not be bound by the procedure laid down by the CPC" is not akin to saying that procedure as laid down by the CPC is in no manner relevant to the Tribunal. Further, Section 19(1) also does not mean that Tribunal cannot follow any procedure given in the CPC. One provision of CPC inserted by Act 104 of 1976 with effect from 01.02.1977 is Order 26, which is relevant for present inquiry. Order 26Rule 10-A provides as follows:
"10A. Commission for scientific investigations-
(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in Page 3 of 7 the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9."
158. Rule 10A provides that where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. Rule 10A is enabling power to the courts to obtain report from such persons as it thinks fit when any question involves with the scientific investigation. The powers under Rule 10A which are to be exercised by the Court can very well be used by the NGT to obtain reports by experts. The NGT as per the statutory scheme of the NGT has to decide several complex questions pertaining to pollution and environment. The scientific investigation and report by experts are necessary requirement in appropriate cases to come to correct conclusion to find out measures to remedy the pollution and environment. We do not, thus, find any dearth of jurisdiction in the NGT to appoint a committee to submit a report. We may further say that while asking expert to give a report the NGT is not confined to the four corners of Rule 10A rather its jurisdiction is not shackled by strict terms of Order 26 Rule 10A s per Section 19(1) as noticed above.
159. There is one more provision which throws considerable light on the above. Under Section 35 of the NGT Act, 2010 Central Government is empowered to make rule for carrying out the provisions of the Act. Rules have been framed in exercise of powers under Section 35, namely, National Green Tribunal (Practice and Procedure) Rules, 2011. The said Rules have been framed in exercise of powers under Section 4(4) as well as Section 35. The Rules, 2011 are Rules also for practices and procedure of the Tribunal. Rule 24 which is relevant for the present case is as follows:
"24. Order and directions in certain cases.- The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice."
160. Rule 24 empowers the Tribunal to make such orders or give such directions as may be necessary or expedient to give effect to its order or to secure the ends of justice. Rule 24 gives vide powers to the Tribunal to secure the ends of justice. Rule 24 vests special power to Tribunal to pass orders and issue directions to secure ends of justice. Use of words 'may', 'such orders', 'gives such directions', 'as may be necessary or expedient', 'to give effect to its orders', 'order to prevent abuse of process', are words which enable the Page 4 of 7 Tribunal to pass orders and the above words confer vide discretion.
161. Professor Justice G.P. Singh, in Principles of Statutory Interpretation, 14th Edition while dealing with enabling word says:
"Ordinarily, the words 'May' and 'It shall be lawful' are not words of compulsion. They are enabling words and they only confer capacity, power or authority and imply discretion. "They are both used in a statute to indicate that something may be done which prior to it could not be done". The use of words 'Shall have power" also connotes the same idea."
162. The enabling powers give to the Tribunal under Rule 24 is for purpose and object to decide the subjects which are to be examined, decided and an appropriate relief is to be granted by the Tribunal. Further, subjects contain vide range of subjects which require technical and scientific inputs. The Tribunal can pass such orders as it may think fit necessary or expedient to secure ends of justice.
163. The object for which said power is given is not far to seek. To fulfil objective of the NGT Act, 2010. NGT has to exercise a wide range of jurisdiction and has to possess vide range of powers to do justice in a given case. The power is given to exercise for the benefit of those who have right for clean environment which right they have to establish before the Tribunal. The power given to the Tribunal is coupled with duty to exercise such powers for achieving the objects. In this regard reference is made to judgment of this Court in L. Hirday Narain vs. Income Tax Officer, Bareilly, 1970(2) SCC 355, where this Court was examining provision empowering authority to do something. This Court laid down in paragraph 14:
"14. The High Court observed that under Section 35 of the Indian Income Tax. Act, 1922, the jurisdiction of the Income Tax Officer is discretionary. If thereby it is intended that the Income Tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our judgment erroneous. Section 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income Tax Officer may rectify any mistake apparent from the record. If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right -- public or private -- of a citizen."
164. We, thus, are of the considered opinion that there is no lack of jurisdiction in the NGT to direct for Page 5 of 7 appointment of committee or to obtain a report from a committee in given facts of the case."
5. Based on that, it is argued by him that NGT had full authority to constitute a Committee and accordingly, exercising its powers, NGT had constituted a Committee in this case and therefore, this application is not maintainable at all.
6. We find that the sole ground in respect of prayer to recall the order for constituting the Committee stands infructuous because the Committee has already submitted its report against which the Respondent No. 1 has been granted opportunity to file objections as well.
Therefore, whatever grievance the Respondent No. 1 has, he must have stated in objection against the report filed by the said Committee.
7. Moreover allegation that the Respondent No. 2/MPCB had serious allegations against it, made by the applicant, therefore, it ought not to have been Member of the Committee, is also found to be not good ground for making the MPCB a Member of the Committee as well as it's overall coordinator because it is a Government body comprising of various Officers. It cannot be deemed appropriate to hold that entire lot of Officers, who are within this institution, would be biased against the Applicant. We find that there is no specific allegation against the member of the MPCB who was part of the Joint Committee. Therefore, we do not find any substance on this count as well.
8. As regards the impleadment of the new party i.e. M/s. Sudarshan Chemicals Pvt. Ltd., we are of the opinion that after the final argument in this case if any need is felt that the same should also be impleaded as a party in this case, we will pass order at an appropriate stage.
9. As regards locus standai and bona fide also, we will take up the matter at the time of final arguments and not at the preliminary stage.
Page 6 of 710. Accordingly, I.A. No. 188/2022(WZ) does not have enough force and accordingly, it is dismissed.
11. O.A. No. 58/2022(WZ)
12. From the side of Applicant, learned Senior Counsel Shri Raj Panjwani along-with learned Counsel Dr. S. S. Hooda has appeared.
13. From the side of Respondent No. 1/Project Proponent, learned Counsel Mr. Saurabh Kulkarni has appeared and has prayed that he has not prepared the argument today in this case, therefore, we grant him one opportunity to prepare the argument and come on the next date.
14. From the side of Respondent No. 2/Maharashtra Pollution Control Board (MPCB), learned Counsel Mr. Vilas Jadhav has appeared and apprised that reply affidavit has already been filed.
15. From the side of Respondent No. 3/Central Pollution Control Board (CPCB), learned Counsel Mr. Aniruddha Kulkarni has appeared and apprised that reply affidavit has already been filed.
16. Put up the main Application along-with other connected I.A. on 24.01.2023.
17. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM November 29, 2022 Original Application No. 58/2022 (WZ) I.A. No. 73/2022 I.A. No. 188/2022 P.Kr Page 7 of 7