Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
Writ Petition (C) No.1509 of 2016
M/s E. Tech Projects Private Limited Versus The State of Chhattisgarh and
others
SB
Hon'ble Shri Justice Sanjay K. Agrawal
Motion
30/08/2017 Mr. Ajay Kumar Mishra, Senior Advocate with Mr. Ankit Singhal,
Advocate for the petitioner.
Mr. Arun Sao, Deputy Advocate General for the State/respondent
No.1.
Mr. Sudhir Kumar Bajpai, counsel for respondents No.2 and 3.
Mr. V.V.S. Murthy, Senior Advocate with Mr. Shantanu Kumar, Advocate for respondent No.4.
Mr. S.C. Mehadia, counsel for respondents No.5 and 6.
This writ petition has been filed calling in question legality and propriety of the order issued by respondent No.3 granting permission to respondents No.5 and 6 to establish Common Bio-Medical Waste Treatment and Disposal Facility for capacity two ton per day at Patwari Halka No.20, Khasra No.70/(1, 2, 5) at Village Siltara, Dharsiwa, Distt. Raipur subject to fulfillment of the conditions mentioned therein.
When the hearing commenced, Mr. Bajpai, learned counsel for respondents No.2 and 3 would take a preliminary objection that the writ petition is not maintainable as the reliefs claimed are covered under the provisions of the National Green Tribunal Act, 2010 (for short, 'the Act, 2010'). Further elaborating his submission, he would submit that the present writ petition is barred by Sections 14, 15 and 16 of the said Act as well as under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, as the order impugned is appealable and also barred by clause 13 of the Bio- Medical Wastes (Management and Handling) Rules, 1989. Therefore, this writ petition be dismissed primarily on this count.
Mr. Ajay Kumar Mishra, learned Senior Advocate appearing for the petitioner, would submit that in the writ petition no such fundamental question or questions relating to enforcement of any legal right relating to environment is involved and question also does not arise within the enactment in Schedule I and no such relief as claimed can be granted by the National Green Tribunal as such, this Court has jurisdiction to hear the writ petition by which the petitioner only claims to protect its commercial interest, as the work in question to establish Common Bio-Medical Waste Treatment and Disposal Facility has been granted to it by order dated 7-4-2003 for Raipur, Bhilai and Durg and now, contrary to that order, the impugned order has been passed on 31-3-2012 permitting respondents No.5 and 6 to establish the CBWTF at Raipur for District Raipur and just in order to protect its commercial tax and seeking quashment of order Annexure P-1, this writ petition has been filed by the petitioner.
Mr. Mehadia, learned counsel appearing for respondents No.5 and 6, would support the impugned order.
I have heard learned counsel for the parties and considered their rival submissions.
In order to consider the dispute raised by the parties, it would be appropriate to notice the definition of the term "substantial question relating to environment" as defined in clause (m) of Section 2 of the Act, 2010 which states as under:-
"substantial question relating to environment" shall include an instance where,--
(i) there is a direct violation of a specific statutory environmental obligation by a person by which,--
(A) the community at large other than an individual or group of individuals is affected or likely to be affected by the environmental consequences; or (B) the gravity of damage to the environment or property is substantial; or (C) the damage to public health is broadly measurable;
(ii) the environmental consequences relate to a specific activity or a point source of pollution;"
Sections 14, 15 and 16 of the Act, 2010 provide as under: -
"14. Tribunal to settle disputes.--(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial 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.
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 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.
*** *** ***
*** *** ***
16. Tribunal to have appellate jurisdiction.--Any person aggrieved by,--
(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977);
(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980 (69 of 1980);
(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);
(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);
(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);
(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986);
(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002 (18 of 2003), may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days. "
A focused glance of the provisions contained in Section 14 of the Act, 2010, would show that the Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved including the question arising out of the implementation of the enactments specified in Schedule I. Section 15 speaks about relief, compensation and restitution that can be granted.
The question would be whether the writ petition filed by the petitioner for enforcement of his commercial interest i.e. for quashing the order Annexure P-1 dated 31-3-2012 can be entertained, whereby the Chhattisgarh Environment Conservation Board after granting permission to the petitioner to establish such a CBWTF for Durg again granted such a permission to respondents No.5 and 6. The petitioner is not seeking any quashment relating to environment but only seeking quashment of the order relating to establishment of such a facility to respondents No.5 and 6 which the petitioner is legally entitled and which has been granted by bypassing his interest to respondents No.5 and 6.
In this connection, Mr. Ajay Kumar Mishra, learned Senior Counsel, would cite a judgment of the Bombay High Court (Nagpur Bench) delivered in W.P.No.6360/2015 (Central India AYUSH Drugs Manufacturers Association and others v. State of Maharashtra and others) decided on 28-9-2016 in which in paragraphs 16, 21, 24 and 27, Their Lordships of the Bombay High Court held thus, "16. Section 14 of the N.G.T. Act, empowers the Tribunal to settle disputes. All civil cases specified in sub-section (1) thereof are amenable to its jurisdiction and sub-section (2) specifically provides for all disputes arising from questions referred to in sub-section (1) are to be heard and settled by it. An application for adjudication of such disputes cannot be entertained by the Tribunal, if it is made beyond a period of six months from the date of cause of action. It has been given power to condone delay of period not exceeding 60 days. Section 15 points out relief, compensation and restitution which Tribunal is empowered to grant under Section 15 (3). Application for grant of any compensation or relief or restitution of property or environment under Section 15, cannot be entertained by the Tribunal, if it is not made within a period of 5 years from the date on which cause therefor first arose. Again it has been given power to condone delay for a period not exceeding 60 days. Under Section 16 Appellate jurisdiction of National Green Tribunal has been specified. It can entertain an appeal filed by a person aggrieved against 10 orders as specified therein, which include enactments mentioned in Schedule-I of the N.G.T. Act. Appeal is required to be filed by the aggrieved person within a period of 30 days, and the Tribunal can condone delay of a period not exceeding 60 days. Under Section 17, if death or injury to any person (other than a workman) or damage to any property or environment has resulted from an accident or adverse impact of any activity or operation or process, under any enactment specified in Schedule-I, the person responsible for it has to give such relief or pay compensation, as specified in Section 17 (1). Section 18 deals with the procedure for filing an application or appeal to the Tribunal.
21. Perusal of Section 14 of N.G.T. Act, reveals that civil cases covered under Section 14(1) are referred to as disputes in sub- section (2). These disputes therefore, must be civil in nature, must arise out of implementation of enactments specified in Schedule-I and therein substantial question relating to environment must be involved. If these three ingredients are satisfied, bar under section 14(1) gets attracted. Thus all civil cases are not cognizable by National Green Tribunal, tough they may arise out of implementation of Schedule-I enactments, if substantial question relating to environment does not arise therefrom. In section 14(1) words "including enforcement of any legal right relating to environment" are inserted after the word "environment". Thus, issue of enforcement of a legal right relating to environment or a substantial question relating to environment must surface and form subject-matter of a civil case arising out of implementation of Schedule-I enactments. Then only National Green Tribunal will have jurisdiction under Section 14.
24. When Section 14(c) is read along with and construed with Section 2(c) and (m), it is clear that civil cases which can be considered by the National Green Tribunal must affect environment. If it is not affecting environment, the Tribunal will not have jurisdiction. In present facts, relief sought for do not directly or indirectly affect environment.
27. Here, considering the jurisdiction given to the National Green Tribunal only to decide civil cases, where substantial question involved is in relation to environment, it is apparent that the NGT cannot be said to be conferred with the absolute jurisdiction to adjudicate all types of disputes or even all civil disputes. A limited jurisdiction to deal with specific type of civil disputes is only made available to it. Bare reading of Section 28 of the N.G.T. Act prescribing the bar of jurisdiction also substantiates this. Thus, power to pronounce upon the vires of any statutory provision or of any subordinate legislation can not be read into any of the provisions which confer either appellate or original jurisdiction upon National Green Tribunal. The Parliament which has deliberately employed wide or liberal words while laying down the compass or the scheme of N.G.T. Act, has not used such words while phrasing Section 14 of that Act or conferring jurisdiction upon National Green Tribunal. On the contrary, its intention to limit the power to decide certain specified nature of disputes is apparent. We find that the scheme of N.G.T. Act does not permit National Green Tribunal to decide upon the vires of any of the enactments which confer appellate or other jurisdiction upon it and find mention mention in Schedule-I of N.G.T. Act. It also does not empower it to examine validity of any Rules or Regulations made under these enactments."
In a judgment rendered by the Supreme Court in the matter of Bhopal Gas Peedith Mahila Udyog Sangathan and others v. Union of India and others1 Their Lordships have held that environment issues 1 (2012) 8 SCC 326 and matters covered under the National Green Tribunal Act, 2010 in Schedule-I should be understood and litigated before the National Green Tribunal only, and not before any High Court.
Following the provisions contained in Sections 14 and 15 of the Act, 2010 read with the decision rendered by the Bombay High Court in Central India AYUSH Drugs Manufacturers Association (supra), I am of the considered opinion that in the present petition, the petitioner has not raised any substantial question relating to environment within the meaning of Section 2(m) of the Act, 2010, but has only raised question relating to enforcement of his commercial interest with regard to establishment of said facility at Raipur which has already been granted to it and according to the petitioner, it has already made huge investment for establishment of such a plant. The question before this Court is whether respondent No.3 is justified in granting permission to respondents No.5 and 6 in ignorance or bypassing the permission granted to the petitioner herein. Therefore, no such question covered under Section 14 of the Act, 2010 is involved in the present petition and the Court is not called upon to consider any question or enforcement of any legal right relating to environment. Accordingly, I am of the considered opinion that this writ petition is not cognizable by the National Green Tribunal and this can be entertained by this Court under Article 226 / 227 of the Constitution of India. Thus, the preliminary objection raised on behalf of respondents No.2 and 3 is overruled and the matter is directed to be listed for final disposal at motion stage on 4-10-2017.
Interim order granted earlier shall continue till the next date of hearing.
Sd/-
(Sanjay K. Agrawal) Judge Soma