National Green Tribunal
M/S Opg Power Gujrat Private Ltd. & Ors vs Husain Saleh Mahmad Usman Bhai Kara & Ors on 18 October, 2012
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BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI
(PRINCIPAL BENCH)
Review Application No. 04/2012
In
Application No. 08/2012
IN THE MATTER OF
1. M/s. OPG Power Gujarat Pvt. Ltd.
Through the Managing Director
167, St. Mary's Road, Alwarpet
Chennai, Tamil Nadu 600 018
2. Mr. Arvind Gupta
Managing Director
M/s. OPG Power Gujarat Pvt. Ltd.
167, St. Mary's Road, Alwarpet
Chennai, Tamil Nadu 600 018
3. Mr. Mahveer Jain
Director and Officer In-charge
M/s. OPG Power Gujarat Pvt. Ltd.
PO: Bhadreshwar
Taluka: Mundra, Dist: Kutch
Gujarat 370411
4. Mr. Parshant Goel
Director and Officer In-charge
M/s. OPG Power Gujarat Pvt. Ltd.
PO: Bhadreshwar
Taluka: Mundra, Dist: Kutch
Gujarat 370411
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5. Mr. G.S. Bokhani
Director and Officer In-charge
M/s. OPG Power Gujarat Pvt. Ltd.
PO: Bhadreshwar
Taluka: Mundra, Dist: Kutch
Gujarat 370411 .... APPLICANTS
Versus
1. Husain Saleh Mahmad Usman Bhai Kara
R/o Village Bhadreshwar, Taluka Mundra,
Dist. Bhuj Kutch,
Gujarat - 370411
2. Union of India
Through the Secretary
Ministry of Environment and Forests
Paryavaran Bhavan, CGO Complex
Lodhi Road, New Delhi- 110 003
3. Gujarat State Level Environment Impact
Assessment Authority
Through the Member Secretary
Paryavaran Bhawan, Sector-10A
Gandhinagar, Gujarat 382010
4. Gujarat Pollution Control Board
Through the Member Secretary
Paryavaran Bhawan, Sector-10A
Gandhinagar, Gujarat 382010
5. State of Gujarat
Through the Principal Secretary
Forest and Environment Department
14th Block, 8th Floor, Sachivalaya
Gandhinagar, Gujarat 382010
.... RESPONDENTS
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Counsel for Applicant:
1. Mr. Krishnan Venugopal, Sr. Adv.
Counsel for Respondent:
1. Mr. Raj Panjwani, Sr. Adv. For R - 1
2. Ms. Neelam Rathore, Adv. For R - 2
3. Ms. Hemantika Wahi, Adv. For R-3 to 5
JUDGMENT
PRESENT:
Justice A.S. Naidu (Acting Chairperson) Dr. G.K. Pandey (Expert Member) Dated 18th October, 2012 This Review Application has been filed invoking our jurisdiction under Section 19 (4) (f) of the National Green Tribunal Act, 2010, inter-alia, praying to review/recall/modify/clarify the order dated 10th May, 2012 passed in Application No. 8/2012, mainly on the ground that in paragraph 13 certain inadvertent mistakes apparent on the face 4 of the record have occurred. The said paragraph reads as follows:
"Heard Learned Counsel for the parties at length, perused the replies filed by the parties diligently. Also perused the contents of the site visit report prepared in accordance with the directions issued by this Tribunal, by seven responsible officers of SEIAA/SEAC, Gujarat, GPCB and MoEF. In the report they have observed as follows:-
"The company has already started construction work prior to accord of CRZ clearance. Even though the forest clearance has not been granted so far. Construction work was going on till a day before the visit of the Committee. The Company has stopped construction activity only from the yesterday i.e. 9th April, 2012.5
The Company is violating conditions No. 12 & 30 of the environment clearance order dated 11th June, 2010 by continuing construction work. The villagers doubted that project proponent will not follow rest of the conditions in operation phase."
Relying upon the site visit report, it is submitted that team visiting the site only recorded the concerns/observations of the local community, petitioners and complainants. It did not record any finding as mentioned in paragraph 13 of the order dated 10th May, 2012. According to the Applicant the basis for issuing direction in para-16 of the order being the site inspection report, it is a fit case where the order should be reviewed and the directions should be revoked.
The facts stated in the Application are repudiated by the opposite parties mainly on the ground that the Review Application is not maintainable and as such it should be dismissed in limini.
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2. In course of hearing, Mr. Krishnan Venugopal, Learned Senior Advocate placed before us the site visit report in consonance with the order was passed. In paragraph -2 of the site visit report under the heading "Concerns of the Local Community, Petitioners and Complainant" the Committee observed as follows:
"During the site visit and discussions, the following issues/concerns brought to the notice of the Committee:
(i) The company has already started construction work prior to accord of CRZ clearance. Even though the forest clearance has not been granted so far. Construction work was going on till a day before the visit of the Committee. The company has stopped construction activity only from the yesterday i.e. 9th April, 2012.
(ii) The company is violating conditions no. 12 & 30 of the environmental clearance order dated 11/06/2010 by continuing construction work.
The villagers doubted that project proponent will 7 not follow rest of the conditions in operation phase.
(iii) The company is not clear whether to install Air Cooled Condenser or Water Cooled Condenser.
(iv) It is feared that fish catch in the region may decline due to operation of the proposed power plant as changes (shifting of coast lines/sand dunes) are already occurring in the area due to massive development by M/s. Adani on the western side of the present project site.
(v) It is also feared that if the company is followed to lay sea water intake and outfall pipelines, the fishermen residing near the coast will be deprived of their livelihood.
(vi) It is apprehended by the villagers that the dust emitted from the power plant will deposit on fishes kept in open for drying and make it unfit for selling.
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(vii) Underground water and Sakara river water are drawn for the construction by the project proponent leading to a shortage of water affecting the availability of fresh water to the fishermen.
(viii) Some of the survey numbers of the land acquired by the company is under controversy and litigation regarding the same is under progress.
(ix) The company has shown Kharaba land (waste land) of the Government in their premises on the map.
(x) If this power plant is allowed to come up, the local fishermen would be deprived of their livelihood.
(xi) During the visit, Shri Bharat Patel from Kutch Jilla Machhimar Sangarsh Samiti submitted chronology of events."
9According to Mr. Venugopal, the said observations are not the findings of the Committee and this Tribunal should not have issued the directions basing upon the said observations. Thus, there is an error apparent on the face of the record which needs to be reviewed/clarified.
3. Repudiating the stand taken by the respondents that the Review Application is not maintainable. Mr. Venugopal submitted that if an order suffers from an error apparent on the face of the record it can be reviewed. Emphasising on the term "mistake or error apparent". Mr. Venugopal relied upon the decisions of the Hon'ble Supreme Court in the case of State of West Bengal & Ors. Vs. Kamal Sen Gupta & Anr. reported in (2008) SCC. In the said case, it has been observed as follows:
"The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and 10 detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of record for the purpose of Order 47 Rule 1 CPC or Section 22(3) (f) of the Act. To put it differently, an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. While exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment /decision."
4. Mr. Raj Panjwani, Learned Senior Advocate appearing for the opposite parties resisting the submissions made, contended that the review being a judicial re-examination of the case in certain specified and prescribed circumstances, a Court/ Tribunal should not review its own decision unless a grave error or mistake touching the decision itself is brought to the notice. Further, according to Mr. Punjwani, it is unwarranted for the 11 Court/Tribunal to make scrutiny of the findings in exercise of powers of review and that the review powers should not be exercised on the ground that the decision was erroneous on merits.
Drawing attention of the Tribunal to the facts of the case as well as site visit report Mr. Punjwani submits that enough materials are available to lead to an irresistible conclusion that in dis-regard to the directions issued by this Tribunal, the Project Proponent went ahead flouting the direction, in flagrant violation of the decision of this Tribunal. The violation of the terms of reference being apparent on the face of the records, it is a fit case where the review application should be dismissed.
Mr. Punjwani further emphasised that the Applicant having not approached this Tribunal with clean hands and as he has suppressed vital facts, this review application should not only be dismissed but then should be dismissed imposing exemplary cost.
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5. We have heard Learned Senior Advocates for the parties at length. It is well settled that a Review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reasons. The word "sufficient reason" is wide enough to include a misconception of fact or law by a Court or even an advocate. An application for review may be necessitated by way of invoking the doctrine of "Actus Curiae Neminem Gravabit" which otherwise means that an Act of the Court shall prejudice no one. Mistake in the nature of wrong quoting of provisions/contentions may also call for a review of the order. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake there is nothing to prevent the Court from rectification of the said error.
6. Fact remains in para-13 of our judgment dated 10th May, 2012, it is stated that the site inspection report observers certain facts but then, after hearing Mr. Krishnan Venugopal, Learned 13 Senior Advocate, we find that, in fact, the Committee which visited the site reflected the concerns of the local community and the contents of said paragraph were not, in fact, observations/findings of the Committee. But then while deciding the case we had perused the entire report and on being satisfied that there are some allegations with regard to continuance of work in spite of dismissal of the judgment, and that some of Terms of the Reference embodied in the EC were flouted we disposed of the case with certain directions. As a matter of fact, the Committee at page-3 of the report observed/held as follows:
"RCC Foundation works for Boilers and Turbines was in progress. The site condition revealed that the work was recently stopped."
Further under the heading "comments on the directions issued in the order of Hon'ble NGT" it is observed "construction was started without obtaining the forest clearance (conditions no. 12 & 30). However, no works in the forest area was started."
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7. A cumulative reading of the entire report vis-à-vis the findings of the Committee as quoted above prima-facie revealed that there was allegation with regard to continuance of the work even before obtaining forest clearance and also after the disposal of the appeal. The observations made by us in para 15 & 16 of the judgment, was on the basis of the conclusions/findings arrived at by the Committee which conducted the site inspection. Further, we find there is neither any error apparent on the conclusion arrived at nor there is any sufficient reason to review our judgment. However, we direct that in para 13 of the judgment after the word "observed" following sentence be added "the concerns of the local community, petitioners and complainants".
With the aforesaid modification/rectification, the review petition stands disposed of. Parties to bear their own costs.
Dr. G.K. Pandey Justice A.S. Naidu Expert Member Acting Chairperson Dharamvir 18th October, 2012