Madhya Pradesh High Court
R. K. Mahale vs The State Of Madhya Pradesh on 17 April, 2015
(1)
W.P. Nos.18372/2011 (PIL) & 7344/2012 (PIL)
17.04.2015
Shri Siddharth Gupta, Advocate for the
petitioners.
Shri P.K. Kaurav, Advocate with Shri Tabrej
Sheikh, Advocate for the respondents No.1, 2, 4, 5 and
6 in W.P. No.18372/2011 and for respondents No.1, 2, 4, 5, 6, 8 in W.P. No.7344/2012.
Shri Ajay V. Gupta, Advocate for the respondent No.3.
Heard counsel for the parties.
I.A. No.16370/2013:
By this application, the applicant wants to be absolved and extricated from the statement made on his behalf through counsel on 29.01.2013 as recorded in the said order, which reads thus:-
"Shri Siddharth Gutpa, learned counsel for the petitioner.
Shri K. Pathak, learned Dy. Advocate Genral for the respondent State.
Shri Vivek Tankha, learned Senior Advocate with Shri Ajay Gupta, counsel for the respondent No.3.
Shri Tankha, learned senior counsel seeks time to file reply.
Parties to take note that the matter may be disposed of at the admission stage.(2)
At this stage, learned counsel for the petitioner states that the allotment of land to the respondent No.3 is not being questioned by the petitioner on the basis of any right referable to the enactments specified to the Schedule I to the NGT Act and, therefore, he does not question the environmental clearance granted to the respondent No.3.
As prayed, let the matter be listed in the week commencing 4th March, 2013.
C.C. as per rules."
The assertion made in this application is that the statement was made without realizing the efficacy of the document supplied to the applicant. In paragraph - 5 of the application the assertion made by the applicant reads thus:-
"5. That in the above backdrop, the present petitions came up for hearing before this Hon'ble Court on 29.01.2013, when again similar pleas and arguments were made on behalf of state as well as the private respondents. In the course of arguments for the first time did the respondents supplied a copies and records of pleadings of OA no.13/2011 to this Hon'ble Court as well as the present petitioners. It is after perusing the records of OA no.13/2011 - so pending before NGT, did the petitioners realize that perhaps the EC has never been challenged on the fundamental grounds, on which the present application is being now preferred. In fact before the NGT, what is under challenge is non-compliance of the conditions of EC were under challenge and not the very fundamentals of EC itself, which are sought to be agitated herein. That it is in the above backdrop, did the petitioner gave statement that as on 29.01.2013 they were not challenging any (3) provisions relating to NGT Act, in light of which it was recorded that as on that date, no challenge was being put to the EC dated 13.07.2010. It is submitted by way of abundant caution that the said statement was not any undertaking on behalf of the petitioners relinquishing/waivor of their right to challenge the EC or any environmental issue. The statement was given on the basis of reliefs which were sought for by the petitioner "as on 29.01.2013", and thus could not have been treated as waivor of their rights. True copy of the order dated 29.01.2013 of this Hon'ble Court is annexed herewith as ANNEXURE MA-1. That this Hon'ble Court had also fixed the case for final hearing on 05.03.2013, in view of the order dated 16.07.2012 (ANNEXURE MA-2) of the Hon'ble Supreme Court in the SLP preferred by the present petitioners against rejection of the interim relief by this Hon'ble Court on 21.06.2013."
It is not the case of the applicant that the documents on which the applicant now claims to have acquired new information were not available with the applicant on 29.01.2013. The fact that those documents were made available to the applicant in Court on that date is admitted on record in the form of averment made in para-5. Nobody forced the applicant to make the statement on the same day about his intention to pursue the proceedings limited to the challenge in the writ petition and not the grounds available to challenge the environmental clearance order dated 13.07.2010.
(4)No doubt, the applicant was advised to file independent writ petition to challenge the said environmental clearance order which, however, has been withdrawn on 12.03.2013 with liberty to apply for amendment in the present writ petition. But, at the same time, it was without prejudice to the contentions available to the respondent No.3 as recorded in the said order, which reads thus:-
"Shri Siddharth Gupta, counsel for the petitioner.
Shri P.K. Kaurav, Addl. A. G. for respondent nos.1, 2, 4 and 5.
Shri V. K. Tankha, learned Senior Advocate with Shri Ajay Gupta and Shri Rishabh Sancheti, counsel for respondent no.3.
I.A. No.2826/2013.
Interim application in respect of objection to the maintainability of the petition and for dismissal of the same at this stage itself.
Arguments on the aforesaid application are heard.
This is the second petition filed by the same petitioner against the same respondents, but for a little different relief, however the cause of action appears to be the same.
After arguments of both the parties, learned counsel for petitioner submits that he may be permitted to withdraw this petition, with liberty to move an application seeking amendment in W.P.No.7344/2012 filed by the petitioner itself.
The prayer is opposed by Shri Vivek Tankha, learned Senior Advocate appearing for respondent No.3, who submitted that the petitioner may not be (5) permitted to withdraw this petition with liberty, as prayed.
Considering the fact that this petition is at pre-admission stage and at this stage respondent no.3 has caused appearance and submitted its objection and as the said W.P.No.7344/2012(PIL) is already pending before this Court, we find it appropriate to permit the petitioner to withdraw this petition, with liberty to move an application seeking amendment in W.P.No.7344/2012. However, the respondent no.3 of this petition, in case of filing of such an application, shall be at liberty to contest the aforesaid application on merits and legal issues.
With the aforesaid liberty, this petition is dismissed as withdrawn, with no order as to costs.
C.C. as per rules."
Notably, the applicant later on moved application for amendment of the writ petition in view of the said liberty which application was considered on 16.07.2013 when the court passed the following order:-
"Shri Siddharth Gupta, learned counsel for the petitioner.
Shri P.K. Kaurav, learned Additional Advocate General for the respondents-State.
Shri V. K. Tankha, learned senior counsel with Shri Ajay Gupta, Advocate for the respondent No.3.
I.A. No.4532/2013, seeking amendment in the writ petition bringing subsequent events on record. The amendment is substantial in nature and relates to quashment of environmental clearance, dated 13-7-2010 granted to the respondent-Society with respect to construction of hospital and project on the disputed land.(6)
Learned counsel appearing for the respondent No.3 has raised a preliminary objection that in the light of the order dated 29-01- 2013 this amendment cannot be allowed, as this plea was relinquished by the petitioner on 29-01- 2013 when the respondent No.3 had raised preliminary objection in respect of maintainability of the public interest litigation. After arguing the matter for about 40 minutes learned counsel for the petitioner submits that he may be allowed an opportunity to move an application seeking modification of the order dated 29-01-2013. The aforesaid prayer is opposed by Shri V. K. Tankha, learned senior counsel on the ground that such prayer would have been made before commencing argument and after arguing the matter near about 40 minutes such prayer cannot be allowed.
We have heard the learned counsel for the parties. After considering the rival contentions of the parties, we find that it appropriate to allow the prayer made by the petitioner, subject to payment of cost which is quantified to Rs.10,000/- (rupees ten thousand only), to be paid by the petitioner to the respondents. Payment of aforesaid cost, shall be a condition precedent. If an application seeking modification of the order dated 29-01-2013 is filed, the petitioner shall deposit the cost quantified as above in the Registry of this Court. Until and unless the cost is deposited, the application shall not be listed by the office.
C.c. as per rules."
The fact that the applicant has been given liberty in terms of order dated 12.03.2013 in Writ Petition No.3442/2013, cannot be the basis to extricate the applicant of the statement made on 29.01.2013 as (7) recorded by the Court. It is not as if the statement was made being unaware of the facts emerging from the documents forming part of OA No.13/2011 pending before the National Green Tribunal. The applicant was not compelled to make that statement on 29.01.2013.
In our opinion, the argument of the applicant that the Court should be liberal in entertaining this application, as the question about the validity of the environmental clearance order can always be considered in PIL, for which reason he may be permitted to resile from the conscious statement already made on 29.01.2013 cannot be countenanced.
In our opinion, reliance placed on the decision of the Division Bench of Bombay High Court dated 02.07.2013 in Writ Petition No.369/2011 (Adarsh Co. Op. Housing Society Ltd. Vs. Union of India and ors.) and including the decision of the Madras High Court reported in (2007) 5 CTC 210 in the case of C. Augustine Jacob vs. The Union of India, will be of no avail to the applicant in the fact situation of the present case. Inasmuch as, in the reply affidavit filed by the respondent No.3 it has been highlighted that the applicant was conscious about the proceedings arising (8) from the environmental clearance granted on 13.07.2010. That can be discerned from para 3.12 of Writ Petition No.7344/2012 filed on 06.05.2012 much before the statement came to be made on 29.01.2013. The averments made in Para 3.12 of the said writ petition reads thus :-
"3.12. That various complaints were raised by some environmentalists believing that the land lies in the catchment of Upper Lake. The other main allegation raised by these environmentalists were that though the respondent No.3 should have first obtained the environmental clearance before commencing the construction work, as per the SEIAA Guidelines, but the environmental clearance was obtained on 13.07.2010 when the construction was almost complete. The petitioner states that even this subsequent environmental clearance granted on 13.07.2010, a copy of which is annexed herewith as Annexure P-12 was issued by the respondent no.7 wrongly considering the aforesaid land to be falling in the catchment area of upper lake, whereas in fact the entire aforesaid land is part of the lake itself."
We find force in the argument of the respondent No.3 that the statement made on 29.01.2013 on behalf of the applicant was not due to mistaken belief but because of the objection taken by the respondent No.3, that the applicant was free to pursue grievance about justness of the environmental clearance order by way of statutory remedy under the National Green Tribunal Act, 2010 where the proceedings in that behalf were (9) already pending and that remedy could have been availed by the applicant as well. Further, as aforesaid, it is not as if the applicant was unaware about the institution and pendency of the proceedings before the National Green Tribunal, at all. Before making statement, the applicant should have taken due care. Since the applicant chose to make the statement voluntarily, on 29.01.2013, with full knowledge that the applicant intends to pursue issue limited to land allotment and land use and more so because the environmental clearance order was passed as back as on 13.07.2010 which, if allowed to be challenged, at this distance of time, may cause undue hardship to the respondent no.3, who has already successfully contested the proceedings before the National Green Tribunal, which decided the challenge in favour of the respondent No.3 (project proponent), vide decision dated 08.04.2013.
The argument of the applicant that the proposed amendment, essentially, is, for questioning the environmental clearance order dated 13.07.2010, being product of fraud played on the Competent Authority and can be raised at any point of time, cannot be the (10) basis to permit the applicant to approbate and reprobate in view of the express stand taken by the applicant on 29.01.2013.
Suffice it to observe, that no indulgence need be shown to the applicant for recall of the order dated 29.01.2013, in the fact situation of the present case.
Since the application for recall of order dated 29.01.2013 is being disposed of in terms of this order, as a consequence, the amendment application I.A.No.4532/2013 filed in writ petition No.7344/2012 also does not survive for consideration and is disposed of.
The writ petition to proceed for final hearing under caption "Supreme Court Expedited Cases" as already ordered in the past.
Application for dismissal of the writ petition filed by the respondent No.3 bearing I.A. No. 15965/2012 to proceed at the time of final hearing along with the main matter.
I.A. Nos.16370/2013 and 4532/2013 stand disposed of accordingly.
(A.M. Khanwilkar) (K.K. Trivedi)
Chief Justice Judge
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