IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF, APRIL 2017 PRESENT THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI AND THE HON’BLE MRS.JUSTICE K.S.MUDAGAL W.P.No.54409 OF 2015 (GM-POL) BETWEEN:
Bruhat Bengaluru Mahanagar Palike, Corporation Circle, Hudson Circle, Bangalore – 560 002, Represented by Head of Legal Cell Mr.K.D.Deshpande. ... Petitioner (By Sri Devaraj Ashok for Smt.Nalina Mayegowda, Advocates) AND:
1. Jayaram Gouda, Aged major, S/o.Madavenkatappa, No.21, Dasegowdanpalya, 100 Feet Road, VI Block, BSK 6th Stage, Vidyapeeta Post, Kengeri Hobli, Bengaluru – 560 004.
2. Union of India, Represented by Secretary to the Government, Ministry of Environment and Forests, 6th Floor, CGO Complex, Lodhi Road, New Delhi – 110 003.
3. Chairman, Karnataka State Pollution Control Board, ‘Parisar Bhavan’, Church Street, Bengaluru – 560 001.
4. Chairman, Karnataka State Environmental Impact Assessment Authority, 7th Floor, M.S.Building, 4th Phase, Bengaluru – 560 001.
5. Deputy Conservator of Forests, Karnataka State Forest Department Bangalore Urban Division, 18th Cross, Malleshwaram, Bengaluru – 560 003. …Respondents (By Sri Yogeshwaran.A for Sri Sunil, Advocate for R1, Sri C. Ramakrishna, CGC for R2, Sri D.Ashwathappa, AGA for R4 & R5, Sri Gururaj Joshi Advocate , for R3) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 17.8.2015 passed by the National Green Tribunal, Southern Zone, Chennai in Appeal No.44/2015 at Annexure-A, quash the order dated 18.11.2015 passed by the National Green Tribunal, Southern Zone, Chennai in Appeal No.44/2015 at Annexure-B, etc.
This writ petition, coming on for hearing, this day ASHOK B.HINCHIGERI J. made the following:
ORDER This petition is filed by the Bruhat Bengaluru Mahanagara Palike (‘BBMP’ for short) raising the challenge to the National Green Tribunal (‘NGT’)’s orders, dated 17.08.2015 (Annexure-A) and dated 18.11.2015 (Annexure-B).
2. The facts of the case in brief are that the State Level Environmental Impact Assessment Authority issued the environmental clearance on 19.06.2015 to the BBMP for establishing 200 TDP Common Municipal Solid Waste Management Project Facility on the lands at Survey Nos.16/1, 21/1 and 21/2 of Lingadheeranahalli Village, Kengeri Hobli, South Taluk, Bengaluru. This was challenged by the first respondent in appeal No.44/2015 before the NGT. The NGT granted interim stay on 17.08.2015, which was continued until further orders. On 8.10.2015, the project proponent, that is, the Special Commissioner of BBMP placed the request before the NGT that the permission be accorded to proceed with the work without claiming any equity and subject to result of the appeal. The NGT did not accede to the request of the BBMP holding that there is no necessity to make any order on the BBMP’s request and it posted the matter for final hearing on 3.11.2015. On being complained that the interim order of the NGT is violated, the NGT directed the Special Commissioner of the BBMP to be present before it for giving evidence on 24.11.2015. The case was adjourned to 28.01.2016. In the meanwhile, this petition is filed challenging the orders, dated 17.08.2015 and 18.11.2015. On 9.12.2015 this Court granted stay of all further proceedings in appeal No.44/2015. I.A. No.1/2016 filed by the first respondent for vacating the interim order was rejected by this Court by its order, dated 11.04.2016. Aggrieved by the same, the first respondent preferred Special Leave to Appeal (Civil) Nos.7357-7358/2017. The Hon’ble Supreme Court disposed of the said S.L.P. by its order, dated 23.02.2017. The said order reads as follows:
“Having heard learned counsel for the petitioner, we are only inclined to request the High Court of Karnataka at Bangalore to dispose of Writ Petition No.54409/2015 (GM-POL) by end of April, 2017. We are making such a request as the learned counsel for the petitioner would submit that by virtue of the order of stay, the Corporation is presently at liberty to dump the waste at the backyard of the petitioner. The seriousness of the allegation requires to be addressed.
In view of the aforesaid, the request has been made and we are sure that the High Court shall apprise itself to the same and dispose of the matter within the aforesaid time frame.
The special leave petition stands disposed of accordingly.”
3. Sri Devaraj, the learned counsel for the petitioner submits that when this Court is seized of the matter, the NGT ought not to have entertained the appeal, filed by the first respondent. He reads out the order, dated 23.09.2014 and 09.01.2015 passed in W.P. No.24739/2012.
4. He submits that the entertaining of the appeal by the NGT and the consideration of the matter by this Court may lead to conflicting decisions. He submits that even the Upalokayutha is called upon not to intervene in the matter, as this Court is seized of the matter for over two years.
5. He submits that the liberty is reserved to any aggrieved party to appear before this Court, put forth his case and seek appropriate remedy. He submits that the first respondent’s learned advocate had submitted before the NGT that the first respondent would implead himself in the pending writ petitions proceedings before this Court. Having undertaken to do so, the first respondent is estopped from filing the appeal before the NGT.
6. He relies on the Division Bench’s decision of the Bombay High Court in the case of COURT ON ITS OWN MOTION V. NATIONAL HIGHWAY AUTHORITY OF INDIA, NAGPUR AND OTHERS reported in (2015) 6 AIR Bombay R 524. Paragraph Nos.62, 63, 64 of the said decision read as follows.
“62. While exercising the jurisdiction in that regard, in a way we might have encroached upon the jurisdiction of the learned Tribunal to some extent. It is always stated that to err is a human. The Judges are ultimately human beings and they are also prone to error. However, in a constitutional framework, the jurisdiction that can correct our errors, is only with the Hon’ble Supreme Court. In the present case, as already discussed hereinabove, this Court is seized of the matter right from September,2013. The first order passed by this Court permitting felling of trees was passed on 04.02.2015. The same was challenged before the Apex Court by filing a S.L.P., which was withdrawn. However, subsequently, the respondent NGO went in appeal before the learned Green Tribunal which passed the order for the first time on 06.05.2015, i.e. after a period of four months from the date on which the orders were passed by this Court. If this Court had passed any order contrary to the earlier orders passed by the learned Tribunal on the learned Tribunal being seized of the matter, certainly the same would not have been permissible in law. However, it is not so in the present matter. The factual situation is otherwise.
63. We, therefore, find that continuation of proceedings before the learned National Green Tribunal about the issues with which this Court is seized of, much prior to the intervenor NGO filing an appeal before the learned Tribunal, at least in so far as territorial jurisdiction of this Court is concerned, would not be in the interest of justice.
64. We further find that the continuation of contempt proceedings against the applicants before us would not be in the interest of justice, inasmuch as the said officers would be required to face undue hardship and that too for following the directions issued by a Constitutional Court. We make it clear that we are restricting our orders only in so far as territorial jurisdiction of this Court is concerned. We do not wish to observe anything with regard to matters pertaining to the State of Madhya Pradesh.”
7. He also relies upon the Division Bench decision of the Madras High Court in the case of KOLLIDAM AARU PATHUKAPPU NALA SANGAM v. UNION OF INDIA reported in (2014) 5 CTC 397 to advance the submission that the power of judicial review conferred upon this Court under Articles 226 and 227 of the Constitution of India is a part of the basic structure of the constitution, which cannot be taken away even by a law enacted by the Parliament. Besides, the Parliament has not included in Section 29 of the NGT Act, 2010 a specific exclusion of the jurisdiction of the High Courts under Articles 226 and 227. Section 29 bars the jurisdiction of the civil court and not constitutional courts.
8. Per contra, Sri Yogeshwaran, learned counsel appearing for the respondent No.1 submits that the first respondent preferred Appeal No.44/2015 for the purpose of challenging the environmental clearance order, dated 19.06.2015. The filing of the said appeal is in exercise of the statutory right, conferred by Section 16(h) of the N.G.T. Act. He submits that granting of the environmental clearance is in utter violation of the Prior Environmental Clearance Notification, dated 14.09.2006.
9. He submits that the petitioner has submitted itself to the jurisdiction of the N.G.T. It has filed its reply. Only when the N.G.T. was taking up the contempt proceedings for violating its order, the petitioner has belatedly approached this Court.
10. He brings to our notice the observations made by the Karnataka State Pollution Control Board on inspecting the M.S.W. site in Lingadeeranahalli. He read out its observations, which are as follows:
“1. There is smell which is carried down wind direction towards north east felt at about 500 meters from the processing plant.
2. Lot of leachate was over flowed into storm water drain and drain is full of froth generated from the leachate discharge.
3. The leachate along with the storm water carried upto Sompura lake.
4. It can be make out from the physical observation on leachate at entry point of the Sompura lake.
5. Sample of the leachate mixed water collected from the storm water drain near Sompura lake Bridge.”
11. He submits that the Hon’ble Supreme Court in the case of NIVEDITA SHARMA v. CELLULLAR OPERATORS ASSOCIATION OF INDIA AND OTHERS reported in (2011) 14 SCC 337 has expressed that when a statutory forum is created by law for the redressal of grievances, the writ petition should not be entertained ignoring the statutory dispensation. He submits that the jurisdiction of the N.G.T. is not outsted by the orders of this Court.
12. He brings to our notice the decision of the High Court of Judicature, Bombay in W.P.No.5563/2014 disposed of on 17.06.2014, where the Bombay High Court declined to entertain the writ petition against the orders of the N.G.T. in the wake of the remedy available under Section 22 of the N.G.T. Act.
13. In the course of rejoinder Sri Devaraj, learned counsel for the petitioner submits that Section 29 does not expressly or impliedly exclude the jurisdiction of the High Courts under Articles 226 and 227 of the Constitution of India. He submits that the appeal remedy provided under Section 22 of the N.G.T. Act is almost akin to the second appeal under Section 100 of the C.P.C. He submits that if there is no substantial question of law involved in the challenge to any order passed by the N.G.T, the aggrieved party’s remedy would be only to file the writ petition.
14. He submits that the concerted efforts made by various persons to interfere with the working of the plant are stalling the operations in the Lingadeeranahalli Plant for oblique motives. He submits that the filing of the contempt application is absolutely unjustifiable.
15. Sri Gururaj Joshi, learned counsel appearing for the respondent No.3 submits that no relief whatsoever is sought as against the third respondent. The learned Additional Government Advocate Sri D. Ashwathappa appearing for the respondent Nos.4 and 5 also makes similar submissions.
16. Sri Ramakanth, an environmental expert seeks leave of the Court to make certain submissions. He submits that about 475 crores of rupees are invested into the setting up of six MSW facility plants. He submits that their designs are the best in the country and that they are not causing any pollution, much less emitting any bad smell. He submits that the stoppage of the operations of the plant in question would lead to serious problems.
17. The submissions of the learned counsel and the environmental expert have received our thoughtful consideration. We propose to consider the threshold bar raised by the first respondent to the maintainability of this petition. Whether the writ petition is liable to be thrown out in limini in view of the availability of the remedy of filing the appeal under Section 22 of the NGT Act? Section 29 of the said Act contains the specific exclusion of the jurisdiction of civil courts. Section 29 does not expressly or impliedly exclude the jurisdiction of the High Courts under Articles 226 and 227 of the Constitution of India. In any case, the power of judicial review conferred upon the High Court under Articles 226 and 227 of Constitution of India is an integral and essential feature of the Constitution, which cannot be taken away by a law enacted by the Legislature.
18. But this does not mean that the writ remedy can be permitted to be availed of as a matter of course. Unless the reasons are stated for bypassing the alternative remedy, the writ petition under Article 226 of the Constitution of India should not be entertained. The Apex Court, in a catena of decisions has recognized some exceptions to the rule of alternative remedy – where the statutory body has not acted in accordance with the provisions of the enactment or where it has acted in defiance of the fundamental principles of judicial procedure or where it has resorted to invoke the provisions, which are repealed or when an order is passed in utter violation of principles of natural justice or when the vires of the statute is under challenge or for any justifiable reason.
19. The petitioner appears to have filed this writ petition under the impression that it has to approach this Court in view of the pendency of the related matters. We over-rule the first respondent’s preliminary objections to the maintainability of this writ petition.
20. The second question that falls for our consideration is whether there is any legal impediment for the BBMP to file the appeal invoking Section 22 of the NGT Act?.
21. The submission made on behalf of the petitioner is that unless substantial questions of law are involved, the second appeal cannot be filed invoking Section 22 of the said Act. The provisions contained in Section 22 read as follows:
“22. Appeal to Supreme Court.-Any person aggrieved by any award, decision or order of the tribunal, may, file an appeal to the Supreme Court, within ninety days from the date of communication of the award, decision or order of Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the Supreme Court may, entertain any appeal after the enquiry of ninety days, if it is satisfied that the appellant was prevented by sufficience cause from preferring the appeal.”
22. The reference to Section 100 of Code of Civil Procedure, 1908 in Section 22 of the NGT Act cannot be permitted to give rise to puzzling conjunctions. Section 100 of CPC imposes an embargo on the exercise of jurisdiction by the High Court in the second appeal. The scope of exercise of jurisdiction by the High Court in second appeal under Section 100 is limited to substantial question of law. This position is further made clear by Section 101 of CPC, which reads as follows:
“101. Second appeal on no other grounds.-No second appeal shall lie except on the grounds mentioned in Section 100.”
23. On the other hand, the provisions contained in Section 22 are of enabling nature; they do not impose any prohibition or embargo as such.
24. Reference to an earlier Act in a later Act is perhaps a legislative device to ensure brevity. If we probe into the legislative intentment and take an insight into the working of the NGT Act, it becomes clear that the substantial questions relating to environment can be raised in the appeal under Section 22 of the NGT Act. Section 22 of NGT Act is an example of archival drafting. Even when Section 100 of CPC is imported to Section 22 of NGT Act, the same is with reference to the ‘substantial question’ as purposefully and coherently defined in Section 2(m) of NGT Act. Section 2(m) of the NGT Act reads as follows:
“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 effected 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;”
25. Going by the wide meaning given to the substantial question relating to environment in Section 2 (m) of the said Act extracted hereinabove, we do not find any legal impediment for the BBMP to file the second appeal before the Hon’ble Supreme Court invoking Section 22 of the NGT Act. The second question is answered accordingly.
26. However, having heard the matter at great length, we do not propose to relegate the BBMP to file the second appeal.
27. The third question that arises for our consideration is whether interim order passed by this Court would come in the way of the first respondent approaching the NGT?
28. We have carefully gone through the orders passed on 23.09.2014 and 09.01.2015 in W.P.No.24739/2012. The interim order, dated 23.09.2014 restrains the Upalokayukta from intervening in the matter to avoid the passing of conflicting orders. The interim order, dated 9.1.2015 makes it clear that any person, who is aggrieved by any orders of this Court, is at liberty to appear before this Court, put forth his case and seek appropriate remedy, which he is entitled to in law. The perusal of the said orders reveals that any complaint regarding the establishment of dry and wet waste collection and process centres has to be brought to this Court.
29. We have gone through the prayers made in this writ petition and in related writ petitions. In none of the writ petitions (WP.Nos.24739/2012, 30450/2012, 46601/2012, 48595/2013, 55575/2014, 46523/2012, 36508/2013, 18167/2014 and CCC No.1641/2013), the challenge is raised to the environmental clearance order. In the instant writ petition what is challenged is the order, dated 19.06.2015 made by the State Level Environment Impact Assessment Authority. Whether the said order is passed on the basis of proper application (Form No.1) under Prior Environmental Clearance Notification, dated 14.09.2006, whether all the procedural requirements are complied with while granting the environmental clearance, etc. are to be examined. It is for the NGT to examine whether the BBMP has provided for the safeguards in the pre-establishment stage of the Plant in question. Should the NGT answer this issue in the negative, it may even come out with the remedial measures.
30. We do not see any legal impediment for the first respondent to challenge the said environmental clearance order before the NGT. The NGT is created by the National Green Tribunal Act, 2010. Our perusal of the statement of objects and reasons for the NGT legislation reveals that taking into account the large number of environmental cases pending in higher courts and the involvement of multidisciplinary issues in such cases, the Supreme Court requested the Law Commission of India to consider the need for constitution of specialized environmental courts. Pursuant to the same, the Law Commission has recommended the setting up of environmental courts having both original and appellate jurisdiction relating to environmental laws.
31. Section 4(1)(c) of the NGT Act dealing with the composition of the NGT prescribes that it should consist of atleast 10 full-time expert members. Such being the intentment behind and the composition of the NGT, there is no reason as to why the issue of granting the environmental clearance should not be gone into by the NGT.
32. We also notice with appreciation that the BBMP has not only filed its reply in Appeal No.44/2015 but has made an express statement that it is not questioning the jurisdiction of the NGT to entertain Appeal No.44/2015. The taking of such a stand is found in the NGT’s order, dated 8.10.2015.
33. It is also to be noted that in these proceedings no endeavors whatsoever are made to defend the grant of the said environmental clearance order, dated 19.06.2015, possibly because the NGT is seized of the issue of sustainability or otherwise of the said environmental clearance order. The NGT has granted interim stay in Appeal No.44/2015 on 17.08.2015. The said order is not challenged either before this Court or before the Hon’ble Supreme Court immediately. It is only when the NGT passed the order on the first respondent’s contempt application (M.A. No.215/2015) that this petition is filed on 3.12.2015. The NGT by the said order, dated 18.11.2015 had directed that Sri Pankaj Kumar Pandey, Special Commissioner, BBMP be present before it for giving his evidence on 24.04.2015. The sequence of the events, as noticed and stated supra, are reflective of the BBMP subjecting itself to the jurisdiction of the NGT and approaching this Court to halt the contempt proceedings. Nothing prevented the BBMP from approaching this Court or the Hon’ble Supreme Court, as soon as the interim stay was granted on 17.08.2015. Alternatively it ought to have placed all the records before the NGT and sought the early disposal of the main matter (appeal itself). For the reasons best known to itself, the BBMP has not chosen to do so.
34. We are informed at the Bar that Appeal No.44/2015 is adjourned to 15/5/2017 before the NGT. If the BBMP and other parties place all the records before the NGT and raise every tenable contention before the NGT, the matter itself could be given a quietus.
35. The litigation in a matter of this nature is not in the interest of anybody. The litigation in question cannot come in the way of ensuring a clean environment for the residents of Bengaluru. Huge public money is also spent on creating the Common Municipal Solid Waste Management Facilities Project in Linghadeeranahalli Village. Admittedly the Project had become dysfunctional on the granting of the interim order by the NGT. The resumption of the functioning of the Plant in question is only after the granting of interim order, dated 9.12.2015 of stay in these proceedings. We are also informed at the Bar that the Project in question is implemented and that it is functioning to the satisfaction of the residents of Bengaluru. If the specialized and expert forum returns its findings in the appeal filed by the first respondent, this Court would also have its benefit while dealing with the related matters.
36. Taking all these facts, circumstances and aspects into pragmatic consideration and to meet the ends of justice, we pass the following order:
(i) The BBMP and all the other parties shall place the records before the NGT on 15.05.2017. We request the NGT to take up the Appeal No.44/2015 on day-to-day basis and dispose it of within two weeks from 15.05.2017.
(ii) No opinion whatsoever is expressed on the sustainability or otherwise of the environmental clearance order, dated 9.11.2015.
(iii) The contempt proceedings in M.A.No.259/2015 shall be kept in abeyance until the disposal of the main matter i.e., Appeal No.44/2015. Their revival/dropping and/or fresh initiation would obviously depend upon the outcome of Appeal No.44/2015.
(iv) The on-going activities of the Project in question are permitted to be continued but subject to the outcome of Appeal No.44/2015.
Sd/- JUDGE Sd/- JUDGE hr/cm