Kerala High Court
M/S.K K Rocks & Granites India (P)Ltd vs Latha S on 27 April, 2016
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938
WP(C).No. 23964 of 2016 (U)
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PETITIONER:
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M/S.K K ROCKS & GRANITES INDIA (P)LTD.,
KOTTACKAL, TC 2/3497, PATTOM,
THIRUVANANTHAPURAM-695 004.
REPRESENTED BY ITS MANAGING DIRECTOR,
SRI.ARUN VARGHESE.
BY SRI.BECHU KURIAN THOMAS (SENIOR ADVOCATE)
ADVS.SRI.PAUL JACOB (P)
SRI.ENOCH DAVID SIMON JOEL
SRI.S.SREEDEV
SRI.RONY JOSE
SRI.GEORGE A.CHERIAN
RESPONDENT(S):
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1.LATHA S, ASWATHY BHAVAN, MACHEL,
MOOKUNIMALA, THIRUVANANTHAPURAM-695571.
2.STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF ENVIRONMENT &
CLIMATE CHANGE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3.STATE ENVIRONMENT IMPACT ASSESSMENT AUTHORITY,
DEPARTMENT OF ENVIRONMENT & CLIMATE CHANGE,
PALLIMUKKU, PETTAH P.O.,
THIRUVANANTHAPURAM.
REPRESENTED BY ITS MEMBER SECRETARY.
R1 BY ADVS.SRI.P.G.SURESH
SRI.G.SUDHEER (THURAVOOR)
SRI.RAJAN VISHNURAJ
SRI.V.HARISH
R2 & R3 BY SENIOR GOVT. PLEADER SRI.M.V.ANANDAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 10-08-2016, THE COURT ON 30-08-2016 DELIVERED THE
FOLLOWING:
mbr/
WP(C).No. 23964 of 2016 (U)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXT. P1 : TRUE COPY OF THE EC CERTIFICATE DATED 27.04.2016
AND NUMBERED AS ENVIRONMENTAL CLEARANCE
NO.43/2016 ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
EXT. P2 : TRUE COPY OF THE ORDER DATED 11.07.2016 IN
APPEAL NO.135/2016 ON THE FILES OF THE NATIONAL
GREEN TRIBUNAL, SOUTHERN ZONE, CHENNAI
(DOWNLOADED FROM THE WEBSITE OF THE TRIBUNAL).
RESPONDENT(S)' EXHIBITS: NIL
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//TRUE COPY//
P.S. TO JUDGE
mbr/
C.R.
P.B.SURESH KUMAR, J.
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WP.(C)No.23964 of 2016
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Dated this the 30th day of August, 2016
JUDGMENT
The short question falls for consideration in this writ petition is whether the National Green Tribunal ('the Tribunal' for short) constituted under the National Green Tribunal Act, 2010 ('the Act' for short) has power to pass an ex parte interim order.
2. The relevant facts are the following: The petitioner owns 7.8603 Hectares of property in Pallichal Village. It is stated that they had been conducting quarrying operations in the said property for the last several years. On account of the amendment introduced during 2015 to the Kerala Minor Mineral Concession Rules, it became mandatory for the petitioner to obtain Environmental WP.(C)No.23964 of 2016 2 Clearance for renewal of the quarrying lease obtained by them. Consequently, the petitioner obtained Ext.P1 Environmental Clearance from the State Environmental Impact Assessment Authority. The first respondent challenged Ext.P1 Environmental Clearance before the Tribunal in an appeal under the Act and as per Ext.P2 order, the Tribunal stayed the operation of Ext.P1 without notice to the petitioner. The petitioner is challenging Ext.P2 order on the ground that the Tribunal has no jurisdiction to pass an ex parte interim order in any matter.
3. A counter affidavit has been filed by the first respondent supporting Ext.P2 order on merits.
4. Heard the learned Senior Counsel for the petitioner as also the learned counsel for the first respondent.
5. The learned Senior Counsel for the petitioner contended that the Tribunal being a creature of the statute, it is bound by the provisions of the statute. According to the WP.(C)No.23964 of 2016 3 learned Senior Counsel, in the light of Section 19(4)(i) of the Act which provides that an interim order can be passed by the Tribunal only after providing the parties concerned an opportunity to be heard, the Tribunal cannot pass an ex parte interim order.
6. Section 19 of the Act dealing with the procedure and powers of the Tribunal reads thus:
"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 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 WP.(C)No.23964 of 2016 4 office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decision;
(g) dismissing an application for default or deciding its 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 1;
(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)"
It is seen from Section 19 of Act that the Tribunal though not bound by the procedure laid down by the Code of Civil Procedure, the statute provides that the Tribunal shall be guided by the principles of natural justice. Section 19(4) of the Act confers on the Tribunal the same powers as are WP.(C)No.23964 of 2016 5 vested in a Civil Court under the Code of Civil Procedure in relation to matters enumerated therein for the purpose of discharging its functions. While Section 19(4) of the Act provides that the Tribunal will have the same power as are vested in a civil court in the matter of passing interim orders, it imposes a condition therein that an interim order shall be passed by the Tribunal only after providing the parties concerned an opportunity to be heard. It is, therefore, clear from the scheme of the Act that the legislature intended to confer power on the Tribunal to pass interim orders only after providing the parties concerned an opportunity to be heard. The said intention of the legislature is also evident from the provision contained in Section 19(1) of the Act that the Tribunal shall be guided by the principles of natural justice. In the circumstances, I have no hesitation to hold that the Tribunal has no jurisdiction to pass an interim order without hearing the party affected thereby.
7. The learned counsel for the first respondent WP.(C)No.23964 of 2016 6 contended that the expression 'parties' used in Section 19 (4)(i) of the Act should be read in tune with Rule 15(6) of the National Green Tribunal (Practices and Procedure) Rules, 2011 ('the Rules' for short). Rule 15(6) of the Rules provides that if the Tribunal is satisfied that it is not reasonably practicable to serve notice of application or appeal, as the case may be, upon all the respondents, it may, for reasons to be recorded in writing, direct that the application or appeal, as the case may be, shall be heard notwithstanding that some of the respondents have not been served with notice of the application or appeal. Rule 15(6) of the Rules reads thus:
"Notwithstanding anything contained in sub-rules (1) to (4), if the Tribunal is satisfied that it is not reasonably practicable to serve notice of application or appeal, as the case may be, upon all the respondents, it may, for reasons to be recorded in writing, direct that the application or appeal, as the case may be, shall be heard notwithstanding that some of the respondents have not been served with notice of the application or appeal."
From a reading of Rule 15(6) of the Rules, it is clear that the WP.(C)No.23964 of 2016 7 Tribunal has the authority to pass orders against the respondents, if the Tribunal is satisfied that it is not reasonably practicable to serve notice of application or appeal upon those respondents. The said Rule cannot be interpreted to contend that the Tribunal has power to pass ex parte interim order when the statute prohibits such orders. True, if the respondents do not appear on notice on the interlocutory application for stay filed in a suit or appeal, the Tribunal can certainly pass orders therein without hearing the respondents, if the Tribunal finds that it is not reasonably practicable to serve notice of application on the respondents.
8. The learned counsel for the first respondent then contended that power to entertain an appeal conferred on the Tribunal includes the power to pass interim orders and that the provision contained in Section 19(4)(i) does not preclude the Tribunal from passing an interim order at the time of admission of the appeal. True, where an Act confers WP.(C)No.23964 of 2016 8 jurisdiction, it impliedly confers the power of doing all such acts or employing such means, as are essentially necessary to its execution. The said principle, of course, would have been available to the first respondent to contend that the Tribunal has the power to pass interim orders including ex parte interim orders, had there not been any provision at all in the Act conferring power on the Tribunal to pass interim orders. But, in so far as the statute imposes a restriction on the Tribunal that it shall not pass interim orders without providing the parties concerned an opportunity to be heard on any application made for the said purpose, I do not think that it is possible to contend that the Tribunal can pass an ex parte interim order based on the said inherent powers of the Tribunal.
In the result, the writ petition is allowed and Ext.P2 interim order passed by the Tribunal, to the extent it stays Ext.P1 Environmental Clearance, is quashed. It is made clear that the Tribunal is free to pass fresh orders on the stay WP.(C)No.23964 of 2016 9 application, after affording the petitioner an opportunity to be heard, if insisted by the first respondent.
Sd/-
P.B.SURESH KUMAR, JUDGE.
smm