National Green Tribunal
Nirma Limited vs Moef Ors on 16 September, 2014
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
..............
M.A. No.573 of 2014
In
Appeal No.04 of 2012
In the matter of:
Nirma Limited .....Appellant
Versus
Ministry of Environment and Forest .......Respondent
Counsel for Appellants:
Mr. Dushyant Dave, Sr. Advocate along with Mr. Ramesh Singh,
Advocate.
Counsel for Respondents:
Mr. Vikas Malthora and Mr. M. P. Sahay, Advocates, MoEF for
Respondent No. 1.
Ms. Preeti Bhardwaj, Advocate for Mr. Hemantika Wahi for
Respondent No. 2 and 3.
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE SWATANTER KUMAR (CHAIRPERSON) HON'BLE MR. JUSTICE U.D. SALVI (JUDICIAL MEMBER) HON'BLE DR. D.K. AGRAWAL (EXPERT MEMBER) HON'BLE DR. G.K. PANDEY (EXPERT MEMBER) Dated: September 16, 2014
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?1
JUSTICE SWATANTER KUMAR, (CHAIRPERSON) This is an application filed by the Respondent No. 5 in the appeal praying that the above appeal be transferred to the Western Zonal Bench at Pune of the National Green Tribunal (for short 'NGT').
2. The contention raised on behalf of the applicant herein is that the applicant was ordered to be impleaded as Respondent No. 5 vide order of the Tribunal dated 1st May, 2012 and he has filed his reply and is contesting the appeal on merits. According to the applicant, the Central Government vide Notification dated 17th August, 2011, in exercise of its powers under Section 4 (3) of the National Green Tribunal Act, 2010 (for short 'the Act') has specified that the Western Zone Bench of the NGT will have territorial jurisdiction over the matters pertaining to Maharashtra, Gujarat, Goa with Union Territories of Daman, Diu and Dadra and Nagar Haveli. Subsequently the Bench at Pune was established on 25th August, 2013. The Chairperson of NGT vide order dated 13 th August, 2013 had directed that all the cases under the jurisdiction of Western Zone of the NGT shall be transferred to the NGT Western Zone Bench at Pune. On the above premises, the applicant contends that now the present appeal ought to be transferred to the Pune Bench of the Tribunal.
3. No reply to this Application has been filed on behalf of the non-applicants. However, the transfer of this appeal is vehemently opposed both on point of law and in the given peculiar facts and circumstances in the present case.
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4. At the very outset, we may notice that neither the appellant nor the Ministry of Environment and Forest, the principal Respondent in the case, or any other Respondent in the case supported the prayer of Respondent No. 5 for transfer of the case to the Pune Bench.
5. It is a settled canon of law that the relevant point of time with reference to which such issue of jurisdiction is to be determined, is the point of time when the application was instituted. The Notification issued by the Central Government on 5th May, 2011 and 17th August, 2011, gives the scope of territorial jurisdiction of the respective five Benches of the NGT which are to exercise the jurisdiction over different States under each of these regions. Importantly, the proviso to the Notification dated 17th August, 2011 itself states that, 'the aggrieved persons may file petitions before the NGT at Delhi'. In other words, Principal Bench of the NGT at Delhi had jurisdiction in relation to all such States where Bench had not been established as on the date of issuance of Notification and till establishment. This Notification did not provide for automatic transfer of cases to such Benches from the Principal Bench or other Benches. The power transferring cases to a Bench is exclusively vested with the Chairperson. The order dated 13th August, 2013 was an order passed to transfer cases under the jurisdiction of Western Zonal Bench of NGT in compliance to other orders. It may be noticed that a case which was directed to be heard by the Principal Bench by the Chairperson would continue to be heard by the Principal Bench. A larger Bench of this Tribunal in the case of 3 Wilfred J. v. MoEF 2014 ALL (I) NGT REPORTER (2) (DELHI) 137, while discussing the scope and ambit of the powers of the Chairperson with reference to the provisions of the NGT Act, held as under:
"127.One common expression appearing in Section 4; Rule 11 and the Notification is 'ordinary place of sitting'. The Notification dated 17th August, 2011 identifies the ordinary places of sitting of the NGT and the areas indicated over which the respective Benches of the Tribunal shall exercise jurisdiction. This Notification essentially must be read and construed subject to the Rules of 2011 and the provisions of the NGT Act. A notification is law but is subject to the parent Act and even the subordinate 122 legislation under which it is issued. The powers of the Chairperson to constitute a Bench, the place where the cases or class of cases would be heard cannot be limited by the notification of August, 2011. The provisions of Section 4 and Rules 3, 6 and 11 cannot be frustrated by construing the notification in such strict or narrower manner that it would defeat the very object and purpose of the provisions of the Acts and the Rules framed thereunder. The power of the Chairperson to transfer cases in accordance with the Rules is free of any other restriction. The whole purpose is for better attainment of the ends of justice and for better administration of justice. The framers of the Rules of 2011 have specifically used the words "ordinarily be filed by an applicant or appellant with the Registrar of the Tribunal at its ordinary place of sitting falling within the jurisdiction, the cause of action, wholly or in part, has arisen" under Rule 11. The language of the Rule is not suggestive of application of doctrine of strict or restricted construction. The legislature in its wisdom has used the words which are capable of being given liberal construction on their plain reading. We see no reason as to why we should give them a restricted construction, particularly when this would amount to frustrating the purpose and object of the Act and the Rules thereunder. We are unable to accept the contention on behalf of the respondents that the provisions of other Acts relating to other Tribunals and the language of the NGT Act and the Rules thereunder grant a limited or restricted power to the Chairperson. We have already reproduced supra, the 123 comparative chart of the provisions of the Act even in relation to the power of the Chairperson to transfer cases. Under the NGT Act, power of the Chairperson to constitute Benches, distribution of the business of the Tribunal amongst the members of the Tribunal sitting at different places, transfer cases from one place of sitting to other place 4 of sitting (including the ordinary place of sitting) as well as adoption of circuit benches, is wide enough to transfer cases from one bench to another, from one ordinary place of sitting to another ordinary place of sitting, as well as from one ordinary place of sitting to another place of sitting or even temporarily. If this interpretation is not accepted, then the very purpose of Section 4(4)(b) of the NGT Act and Rules 4 and 6 of the Rules of 2011 would stand defeated. It is a settled rule of interpretation that an interpretation which would further the cause and object of the Act and would render it more practical and effective in the interest of justice administration, should be preferred to the one that would invite results to the contrary. Even upon conjoint reading of the provisions afore-referred, it is not possible for us to come to any other conclusion. The use of the words 'ordinarily' and 'ordinary place of sitting' clearly indicate that the legislature had in its mind that there could be possibility of a case being filed at a place other than the ordinary place of sitting of the Bench. The expression necessarily implies that the cases could be filed at a place other than the ordinary place of sitting.
128. Rule 11 of the Rules of 2011 itself carves out an exception that depending upon the facts and circumstances of the case, it could be filed at another ordinary place of sitting as well. For instance, the Notification of 17th August, 2011 itself says that other Benches which may not have become operative, their cases could be filed at the Principal Bench. If the framers of the Rules of 2011 intended to totally restrict filing of cases at any other place, then it could not have used the expression 'ordinarily'. "Ordinarily" in its common parlance would mean 'usually' or with no special or distinctive features. The Black's Law Dictionary, 9th Edition, explains the word 'ordinary', as occurring in the regular course of events, normally, usually. The expression 'ordinarily' with its connotations should be understood as opposed to 'solely' or 'required' or 'primarily'. The first of these expressions ex facie attract the rule of liberal construction, while others have a greater element of being mandatory. It is unreasonable to think that the word 'ordinarily' does not admit of any inbuilt expansion and has to be construed in prohibitory terms. It has to be presumed that the rule framing authority was aware of all the relevant considerations, including the fact that there are alternative words available to the word 'ordinarily'. Once the legislature uses such word, it cannot be said that the word has been used without a purpose and intendment, particularly when the language used is unambiguous, clear and admits no confusion. The expression 'ordinarily' has to be understood keeping in view the scheme of the Act and the Rules framed there-under and is not to be 125 understood in isolation. The view finds due support from the judgment of the 5 Supreme Court in the case of State of Andhra Pradesh v. V. Sarma Rao, (2007) 2 SCC 159. In this case, the Supreme Court was concerned with the meaning of the expression 'ordinarily' under Section 195(4) of the Code of Criminal Procedure, 1973. In terms of Section 195(4), a Court shall be deemed to be subordinate to the Court to which the appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decree no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such civil court is situated. The Supreme Court held as under: -
"12. Section 195 of the Criminal Procedure Code does not recognise administrative discipline; it recognises judicial discipline with regard to the right of the higher authority to exercise appellate powers. The expression "ordinarily" may mean "normally", as has been held by this Court in Kailash Chandra v. Union of India and Krishan Gopal v. Prakashchandra, but the said expression must be understood in the context in which it has been used. "Ordinarily" may not mean "solely" or "in the name", and thus, if under no circumstance an appeal would lie to the Principal District Judge, the court would not be subordinate to it. When in a common parlance the expression "ordinarily" is used, there may be an option. There may be cases where an exception can be made out. It is never used in reference to a case where there is no exception. It never means "primarily"."
129. Still in another case, Kailash Chandra v. Union of India, AIR 1961 SC 1346, the Supreme Court was concerned with the following rule:
"Rule 2046(2): A ministerial servant who is not governed by sub-clause (b) may be required to retire at the age of 55 years but should ordinarily be retained in service if 126 he continues to be efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority."
130. Therein, while interpreting the word 'ordinarily' appearing in the said Rule, the Supreme Court held as under: -
"8. Reading these words without the word "ordinarily" we find it unreasonable to think that it indicates any intention to cut down at all the right to require the servant to retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient. They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has 6 the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bond to do so.
9. This intention is made even more clear and beyond doubt by the use of the word "ordinarily". "Ordinarily"
means "in the large majority of cases but not invariably". This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues to be efficient. The intention of the second clause therefore clearly is that while under the first clause the appropriate authority has the right to retire the servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but what are special circumstances is left entirely to the authority's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient."
131. From the discussion of the above two cases, it is clear that the word 'ordinarily' means 'in the large majority of cases' but not invariably. This itself emphasizes that there is an element of 127 discretion vested in the Tribunal in relation to the institution of cases. In appropriate cases where the interest of justice may so demand, the cases could be permitted to be instituted in either of the ordinary place of sitting of two Benches, in whose jurisdiction the cause of action has partly arisen.
132. Thus, this expression appearing in Rule 11 cannot be termed as absolute and without any exception, as that is the legislative intent and purpose. It is also a well-known rule of construction that a provision of a statute must be construed so as to give it a sensible meaning. Legislature expects the Courts to observe the maxim ut res magis valeat quam pareat. The Supreme Court, in the case of H.S. Vankani v. State of Gujarat, (2010) 4 SCC 301, stated that "it is a well- settled principle of interpretation of statutes that a construction should not be put on a statutory provision which would lead to manifest absurdity, futility, palpable injustice and absurd inconvenience or anomaly." C. On the cumulative reading and true construction of Section 4 (4) of the NGT Act and Rules 3 to 6 and Rule 11 of Rules of 2011, the Chairperson of NGT has the power and 7 authority to transfer cases from one ordinary place of sitting to other place of sitting or even to place other than that. The Chairperson of NGT has the power to decide the distribution of business of the Tribunal among the members of the Tribunal, including adoption of circuit procedure in accordance with the Rules. An applicant shall ordinarily file an application or appeal at ordinary place of sitting of a Bench within whose jurisdiction the cause of action, wholly or in part, has arisen; in terms of Rule 11 which has an inbuilt element of exception."
From the above dictum declared by the larger Bench of NGT which is binding upon this Bench, it is clear that the Chairperson has powers to transfer any case from any ordinary place of sitting to any other ordinary place of sitting or any other place where the matter is required to be heard in the interest of justice.
6. Admittedly, the applicant was impleaded as Respondent on 1st May, 2012. There have been number of hearings even after August, 2013 but at no point of time the applicant and for that matter any party to the lis made a request for transfer of the case to the Western Zonal Bench. On the contrary, various orders were passed. Even on 23rd August, 2013, a common prayer was made by the Learned Counsels appearing for the parties that the Expert Members who had visited the site earlier should also visit the site during the monsoon season. On number of occasions adjournments were sought by the parties for addressing arguments. On 28th October, 2013, it was brought to the notice of the Tribunal that appeals had been preferred before the Supreme Court against the orders of the Tribunal dated 28th May, 2013 and 6th June, 2013 respectively and that the same were being heard by the Hon'ble Supreme Court. These appeals came to be dismissed by the order 8 dated 4th August, 2014 by the Supreme Court. Ultimately, the application for transfer was filed on 2nd September, 2014 by the applicant. We do not think that the present application is bona fide. It appears to be an abuse of the process of the Court. We say so for the reason that for the entire period of one year, no steps were taken by Respondent No. 5 to file an application for transfer of the case. Furthermore, the appellant who is dominus litus of the present proceedings, as well as all other Respondents do not join the said Respondent No. 5 in making a request for the transfer of the case. On the contrary, they seriously oppose the same. Furthermore, the matter has been heard at length by the Principal Bench on different occasions. The Expert Members of the Principal Bench are part of the Bench that is hearing the matter and who inspected the site in terms of the orders dated 28th May, 2013 and 6th June, 2013. Thus, this Bench would be in a better position to deal with the rival contentions raised by the respective parties rather than the Western Bench. It is obvious from the record that it was on the joint request of the parties that the present case has been retained before the Principal Bench.
7. From the above narrated facts and the position of law, it is clear that it is not a fit case where direction should be passed for transferring the case to the Western Zone Bench of the NGT. The conduct of the applicant as well as the proceedings of the case would fully substantiate the submission of the non-applicant that the case should be heard by the Principal Bench. Transfer of a case is not a right vested in a party. This power should be used with 9 circumspection and caution. It is only when the ends of justice demands that such a direction be passed. Paramount consideration for transfer of a case is the requirement of justice. The mere convenience of the parties is not enough to exercise such power. The Plaintiff is dominus litus and has a right to choose the Court and the parties. The respondent cannot demand transfer of the case. Expediency for ends of justice is the paramount consideration. Reference in this regard can be made to the judgements in the cases of : Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 and Gupte Cardiac Care Centre and Hospital v. Olympic Pharma Care (P) Ltd. (2004) 6 SCC 756.
8. The provisions of the NGT Act and the Rules framed thereunder are in line with these stated principles. The case has been dealt with by the Principal Bench and now when the case is being finally heard, the present application is moved, which, in our opinion, does not even state any plausible ground. Thus, it is neither expedient nor would it be in the interest of justice to transfer this case to the Western Zonal Bench of the NGT. It would cause greater prejudice, hardship and inconvenience to the principal stake holders in the present case.
9. Above all, in the facts and circumstances of the present case, the 'doctrine of necessity' is attracted. The Western Zonal Bench presently has only one Bench which is presided over by Hon'ble Justice V.R. Kingaonkar, who, vide order dated 21st November, 2012 has recused himself from hearing this matter. The order dated 21st November, 2012 passed in the present case reads as under:- 10
"We have heard Learned Counsel for the parties.
A short affidavit is being filed by the Respondent No. 4 today itself. A copy thereof is given to the appellant's counsel. The Learned Counsel for the appellant seeks to go through the said affidavit and if necessary to file the reply. One weeks time is granted to file the reply, if any, to the short affidavit so filed by the Respondent No. 4. The appeal is not to be heard by the Bench to which Justice V.R. Kingaonkar is a party. Therefore the appeal may be placed before the Chairperson for further orders in as much as the counsel for the appellant expresses urgency in the matter and also there is direction of the Apex Court to expedite final hearing. The appeal be placed before the Chairperson within a couple of days.
Stand over to 18th December, 2012."
From the above order, it is clear that there will be no Bench at Pune (Western Zone Bench) which can hear the present appeal even if, it is transferred to that Bench. As per necessity, this case would have to be heard by the Principal Bench. Only if the applicant would have taken the care to read the order sheet of the case which contained the above order the occasion for filing such a frivolous application would not have even arisen.
10. For the reasons afore-stated, we find no merit in this application and the same is dismissed without any order as to costs.
Hon'ble Mr. Justice Swatanter Kumar Chairperson Hon'ble Mr. Justice U.D. Salvi Judicial Member Hon'ble Dr. D.K. Agrawal Expert Member Hon'ble Dr. G.K. Pandey Expert Member Dated: September 16, 2014 11