National Green Tribunal
Ngt Bar Association Legal Aid Committee ... vs Madhu Kamboj on 12 February, 2024
Item No.05 & 06 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
(Through Physical Hearing with Hybrid VC Option)
Original Application No. 134/2022
(I.A. No. 882/2023, I.A. No.71/2023 and 73/2024)
With
Original Application No. 267/2022
Tejasvi Chandra Applicant
Versus
Madhu Kamboj Respondent
With
Tejasvi Chandra Applicant
Versus
State of Uttarakhand Respondent
Date of hearing: 12.02.2024
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: None for the Applicant.
Respondent: Mr. Deepak Bora and Mr. Sachin Dubey, Advocates
for Madhu Kamboj.
Mr. Mukesh Verma, Advocate for UKSPCB (through
VC).
Mr. Rahul Verma, Advocate for State of Uttarakhand
(Through VC).
Application under the provisions of the National Green Tribunal Act, 2010.
ORDER
O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -2-
1. The grievance of the applicant in the present applications is regarding construction and operation of a new petrol pump at Khasra No. 1081 adjoining SIERRA International School near Mothrowala Road, Dehradun by Mrs. Madhu Kamboj in complete disregard of various rules, regulations and guidelines.
2. Vide order dated 21.02.2022 this Tribunal constituted a Joint Committee comprising of State PCB and District Magistrate-Dehradun, Uttarakhand.
3. Report of the Joint Committee was submitted by Mr. Shiv Kumar Baranva, Additional District Magistrate, Dehradun vide letter dated 05.04.2022. In its report the Joint Committee submitted that the petrol pump is non-compliant to the CPCB guidelines dated 07.01.2020 as residential houses and school are situated within radius of 50 meters and UKSPCB sent letter dated 18.04.2022 to the District Magistrate, Dehradun requesting him to cancel the permissions issued.
4. The applicant has filed I.A. No. 71/2023 for allowing the applicant to withdraw the application.
5. None has appeared for the applicant today.
6. We have heard learned Counsel for the respondents present and gone through the relevant record.
7. The question which arises for consideration is as to whether the applicant is entitled as a matter of right and as being dominus litis to withdraw the application at the present stage of the proceedings. O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -3-
8. Section 14 of the National Green Tribunal Act, 2010, which empowers the Tribunal to settle disputes, reads as under:-
"14. Tribunal to settle disputes.-(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial settle disputes. 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."
9. Section 15 of the National Green Tribunal Act, 2010, which empowers the Tribunal to grant relief, compensation and restitution reads as under:-
"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;
(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 O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -4- 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."
10. Section 19 of the National Green Tribunal Act, 2010 which specifies procedure and powers of Tribunal reads as under:-
"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 (5 of 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 (1 of 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 (5 of 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;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 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;
O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -5-
(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 (45 of 1860) 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 (2 of 1974)."
11. The National Green Tribunal Act, 2010 and the National Green Tribunal (Practice and Procedure) Rules, 2011 do not contain any provision permitting withdrawal of any application or appeal. Order 23 of the Code of Civil Procedure, 1908 incorporates provisions for withdrawal of civil suit. However, Section 19 (1) of the National Green Tribunal Act, 2010 declares that this Tribunal is not bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) although it has to abide by the principles of natural justice. It is pertinent to observe that broadly speaking applications or appeals under the National Green Tribunal Act, 2010 fall in two categories those based on personal injury/cause of action and seeking compensation/restitution on the basis thereof and those based on public injury/cause of action and seeking remediation thereof. While there may not be any serious objection to withdrawal of an application or appeal based on personal injury/cause of action and seeking compensation/restitution on the basis thereof in view of O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -6- compromise or change of circumstances but it would be against public policy and also public interest to allow withdrawal of application or appeal based on public injury/cause of action seeking remediation thereof and the same cannot be allowed to be withdrawn without any valid reason just by exercise of personal choice for serving personal interest and it would serve the public interest and the cause of protection and improvement of environment if permission for withdrawal of such application or appeal is declined.
12. In Sheela Barse v. Union of India ;AIR 1988 SC 2211: (1988) 4 SCC 226 Law Finder Doc Id # 89691 the main public interest litigation petition was filed by Sheela Barse to highlight the gross violations of the constitutional and statutory rights of a large number of children in the country who were suffering custodial restraints in various parts of the country and for the protection and enforcement of their rights. Sheela Barse filed Miscellaneous Petition for leave to withdraw the main public interest litigation on grounds which were held by Hon'ble Supreme Court to be untenable. The question agitated related to the aspect whether a public-minded person who brings such an action is entitled, as of right, to withdraw the proceedings from the court. The Applicant contended that not only that leave for withdrawal cannot be refused but also that the main petition cannot be continued by any other citizen or organisation. Hon'ble Supreme Court noticed that the prayer, if granted, would frustrate the important issues the main petition had served to highlight in the matter of the status and enforcement of the laws enacted for the protection and welfare of the children in the country. The proceedings espoused the cause of a large number of suffering children who, on account of the traditional inertia against reform, the bureaucratic and official apathy, insensitivity O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -7- to and lack of human consideration for the lot of the suffering children and the lack of proper perceptions of the values and ideology of the legislation concerning children even on the part of law enforcing agencies, were being denied the protection of their constitutional and statutory rights. Hon'ble Supreme Court observed that the proceedings in a public interest litigation are, therefore, intended to vindicate and effectuate the public interest by prevention of violation of the rights, constitutional or statutory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic disadvantages cannot themselves assert - and quite often not even aware of - those rights and the "rights" of those who bring the action on behalf of the others must necessarily be subordinate to the "interests" of those for whose benefit the action is brought. Acknowledgement of any such status of a Dominus-Litis to a person who brings a public interest litigation will render the proceedings in public interest litigations vulnerable to and susceptible of a new dimension which might, in conceivable cases, be used by persons for personal ends resulting in prejudice to the public-weal. Hon'ble Supre Court also noticed that in the proceedings Hon'ble Supreme Court had already gone through and had initiated an elaborate exercise as indicated in the orders excerpted earlier and held that the petition could not be permitted to be abandoned at that stage and only a private litigant could abandon his claims. Accordingly, Hon'ble Supreme Court refused permission for the withdrawal of the petition and directed that the applicant be deleted from the array of parties in this proceeding and the proceedings be proceeded with a direction to the Supreme Court Legal Aid Committee to prosecute the petition together with the aid and assistance of such persons or agencies as the Court may permit or direct from time to time.
O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -8-
13. Observations made by Hon'ble Supreme Court in the above mentioned case are also relevant and applicable to the question of withdrawal of application by the applicant in the present case. The right of the applicant to withdraw the application filed for serving public interest in protection and improvement of environment must necessarily be subordinate to the "interests" of those for whose benefit the action was brought. According status of a Dominus-Litis to the applicant, who filed application for serving public interest of protection and improvement of environment, will render the proceedings vulnerable to and susceptible of a new dimension of use thereof for personal ends resulting in serious prejudice to the public interest of protection and improvement of environment. In the present proceedings this Tribunal has already gone through and has initiated an elaborate exercise in respect of the grievance raised as indicated in the orders passed on the application and the same cannot be permitted to be abandoned at this stage. In these facts and circumstances of the case the applicant cannot be permitted to withdraw the application and request for dismissal of the application as withdrawn is declined.
14. Moreover, this Tribunal has been conferred power to take suo motu cognizance in discharge of its functions under the National Green Tribunal Act, 2010. In Municipal Corporation of Greater Mumbai v. Ankita Sinha (SC) : AIR 2021 Supreme Court 5147 : Law Finder Doc Id # 1890858 Hon'ble Supreme Court considered the question whether this Tribunal has the power to exercise Suo Motu jurisdiction in discharge of its functions under the National Green Tribunal Act, 2010 and held that this Tribunal is vested with suo motu power in discharge of its functions under O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -9- the National Green Tribunal Act, 2010. The relevant extracts from the conclusion in that case are reproduced as under:-
"30. The NGT Act, when read as a whole, gives much leeway to the NGT to go beyond a mere adjudicatory role. The Parliament's intention is clearly discernible to create a multifunctional body, with the capacity to provide redressal for environmental exigencies. Accordingly, the principles of environmental justice and environmental equity must be explicitly acknowledged as pivotal threads of the NGT's fabric. The NGT must be seen as a sui generis institution and not unus multorum, and its special and exclusive role to foster public interest in the area of environmental domain delineated in the enactment of 2010 must necessarily receive legal recognition of this Court.
31. The environmental impacts on climate change are gaining increasing visibility in the shape of uncertain rains, species extinction, loss of natural habitat and so on. These also have the propensity to diminish fresh water resources, reduce agricultural yields and impact public health, particularly in the cities. The flooding and erosion in riverine and coastal areas are matters of serious concern. Governmental assessment of India's increased vulnerability to such changes in the near future also exists[41*] with many countries declaring climate emergencies and many others being urged to follow suit[42*].
[41* Indian Network for Climate Change Assessment, Climate Change and India: A 4X 4 Assessment - A sectoral and regional analysis for 2030s, Ministry of Environment and Forests, Government of India, 16 November 2010] [42* Secretary-General's Remarks at the Climate Ambition Summit. United Nations. United Nations, December 12, 2020.]
32. Therefore, the nature of ecological imbalance which is visible even in our own times may cascade, and the unforeseen injustice of the future may not be capable of being handled within the frontiers set forth today. The long term and very often irreparable environmental damage which are expected to be arrested by the NGT, urge this Court to advert to what is termed as the `Seventh Generation' sustainability principle, or the `Great Law of the Iroquois' (as it originates from the Iroquois Tribe) which requires all decision making to withstand for the benefit of seven generations down the line.
33. It is vital for the wellbeing of the nation and its people, to have a flexible mechanism to address all issues pertaining to environmental damage and resultant climate change so that we can leave behind a better environmental legacy, for our children, and the generations thereafter.
34. In circumstances where adverse environmental impact may be O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -10- egregious, but the community affected is unable to effectively get the machinery into action, a forum created specifically to address such concerns should surely be expected to move with expediency, and of its own accord. The potentiality of disproportionate harm imposes a higher obligation on authorities to preserve rights which may be waylaid due to such restrictive access. It is also noteworthy that the "global impacts of climate change will fall disproportionately on minority and low-income communities". Thus, an affirmative role, beyond mere adjudication at the instance of applicant, is certainly required for serving the ends of environmental justice, as the statute itself requires of the NGT. We cannot validate an argument which furthers uncertainty to justify the role of a spectator, if not inaction, and would most assuredly result in injustice.
35. The NGT, with the distinct role envisaged for it, can hardly afford to remain a mute spectator when no-one knocks on its door. The forum itself has correctly identified the need for collective stratagem for addressing environmental concerns. Such a society centric approach must be allowed to work within the established safety valves of the principles of natural justice and appeal to the Supreme Court. The hands-off mode for the NGT, when faced with exigencies requiring immediate and effective response, would debilitate the forum from discharging its responsibility and this must be ruled out in the interest of justice.
36. It would be procedural hairsplitting to argue (as it has been) that the NGT could act upon a letter being written to it, but learning about an environmental exigency through any other means cannot trigger the NGT into action. To endorse such an approach would surely be rendering the forum procedurally shackled or incapacitated.
37. When the Registry of the NGT does indeed receive a communication or letter, including matters published in media, it may cause to initiate suo motu action by inviting attention of NGT to such matters in the form of office report. Such circumstances would however require a notice to be given to the sender of the communication or author of the news item, as the case may be, to assist the NGT in the course of hearing and to substantiate the factual matters. It must also be said that the exercise of suo motu jurisdiction does not mean eschewing with the principles of natural justice and fair play. In other words, the party likely to be affected should be afforded due opportunity to present their side, before suffering adverse orders.
38. One could admit to the argument of danger of suo motu jurisdiction, if the NGT was acting outside its domain. But when it is legitimately working within the contours of its statutory mandate and with procedurals safeguards clarified above in play, the nature of the trigger itself viz. a letter or a `suo motu' initiation, cannot be the basis to curtail the role and responsibility of the specialized forum.
39. Institutions which are often addressing urgent concerns gain little from procedural nitpicking,which are unwarranted in the face of both the statutory spirit and the evolving nature of environmental degradation. Not merely should a procedure exist but it must be O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -11- meaningfully effective to address such concerns. The role of such an institution cannot be mechanical or ornamental. We must therefore adopt an interpretation which sustains the spirit of public good and not render the environmental watchdog of our country toothless and ineffective.
40. Let us now hark back to the dialogues of the two protagonists, in Waiting for Godot, the play written by Samuel Beckett with which, we started this judgment. At the end of the deliberations, we find ourselves saying that the National Green Tribunal must act, if the exigencies so demand, without indefinitely waiting for the metaphorical Godot to knock on its portal. The preceding discussion advises us to answer the pointed question in the affirmative. It is accordingly declared that the NGT is vested with suo motu power in discharge of its functions under the NGT Act."
15. Consistent with its statutory obligations under the National Green Tribunal Act, 2010, this Tribunal has to respond to the duly verified factual position in the present case with requisite remedial/ameliorative measures for protection of environment and this Tribunal cannot take refuge under any technical dispensation by dismissal of application as withdrawn.
16. In view of the above I.A. No. 882/2023 prayer for dismissal of the original application is declined while permitting the applicant to withdraw from the case and the NGT Bar Association, Legal Aid Committee is substituted as the applicant in his place. The Registry is directed to amend the memo of parties and to supply copy of the paper book to the Secretary, NGT Bar Association Legal Aid Committee for joining the proceedings before this Tribunal on the further dates of hearing fixed.
17. Respondent no. 1 has filed I.A. No. 73/2024 for seeking permission to place additional documents mentioned therein on record.
18. For the reasons mentioned, I.A. No. 73/2024 is allowed and respondent no.1 is allowed to place additional documents mentioned therein on record.
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19. In the present case, the District Magistrate, Dehradun sent report dated 17.10.2022 by post. In the report the District Magistrate, Dehradun has mentioned that outlet in question has been setup in compliance with CPCB Guidelines. Letter for setting up the outlet was issued on 28.04.2021 and the retail outlet was started on 30.04.2021. The process for setting up the petrol pump had commenced in the year 2018 and the recommendation was made before 07.01.2020 and in view thereof CPCB guidelines dated 07.01.2020 were not applicable to the outlet in question.
20. Reliance was placed on letter dated 29.01.2021 issued by Mr. P.K. Gupta, Additional Director and Head AQM Division mentioning that the siting criteria for new Retail Outlets is to be complied with in cases where construction of Retail Outlets by Oil Marketing Companies commenced on or after 07.01.2020. In other words, the siting criteria will not apply to those cases where PESO prior clearance/ initial approval has been obtained and subsequently construction has been started by the OMC before 07.01.2020. The District Magistrate, Dehradun has merely annexed copy of letter dated 07.12.2019 whereby Ms. Madhu Kamboj was informed that on draw of lots for selection of retail outlet dealership for the site in question, she had been declared selected and has not annexed copies of PESO prior clearance/initial approval and any relevant document to show commencement of construction before 07.01.2020 alongwith his report.
21. The questions which arise in the present case are as to when PESO clearance/initial approval was granted and when construction of the retail outlet commenced. In case the clearance was granted and the construction commenced before the 07.01.2020 then CPCB guidelines 07.01.2020 will not be applicable but in case such clearance was granted and the O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -13- construction commenced after 07.01.2020 the said guidelines will be applicable.
22. In the present case the District Magistrate, Dehradun unreasonably delayed submission of his report and while submitting his report did not look into the relevant facts and obtain the relevant documents and did not submit properly reasoned report with due application of mind to this Tribunal and did not enclose the documents essentially required with his report and thereby failed to comply the order passed by this Tribunal and show cause notice be issued to him as to why order for taking appropriate action including direction for his prosecution should not be passed by this Tribunal for non-compliance with the order passed by this Tribunal.
23. The applicant is directed to file copy of PESO clearance when the PESO clearance was granted and also copies of all relevant documents including sanction site plan, as the case may be, to show as to when the construction of retail outlet commenced.
24. Joint Committee constituted by this Tribunal is also directed to further verify the facts, obtain all relevant documents and submit a report as to when PESO clearance was granted and when construction of the retail outlet commenced.
25. Reply to show cause notice by the District Magistrate, Dehradun, response by respondent no. 1 and report by the Joint Committee be filed within one month by email at [email protected]. preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
26. List the matter for further consideration on 08.04.2024. O.A. No. 134/2022 Tejasvi Chandra Vs. Madhu Kamboj With O.A No. 267/2022 -14-
27. In view of the facts and circumstance of the case, we consider personal appearance of the District Magistrate, Dehradun and Regional Officer, UKPCB Regional Office, Dehradun and duly authorized representative of the project proponent on the next date of hearing to be essential for producing the relevant record and assisting this Tribunal in just and proper adjudication of the questions involved in the case and they are accordingly directed to remain before this Tribunal on that date.
28. A copy of this order be sent to District Magistrate, Dehradun and Member Secretary, UKPCB by email for requisite compliance.
29. A copy of this order be also placed in the record of O.A. No. 267/2022.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM February 12th, 2024 n