Delhi High Court
Jan Chetna vs Ministry Of Environment And ... on 11 May, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th May, 2012
+ W.P.(C) No. 8399/2009
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JAN CHETNA ....Petitioner
Through: Sanjay Parikh, Mr. Rahul Chaudhary & Mr.
Pranav Raina, Advocates
Versus
MINISTRY OF ENVIRONMENT AND
FORESTS & ORS .. Respondents
Through: Mr. Rajesh Banati with Mr. D.K. Sharma,
Advocate for R-1
Ms Yogmaya Agnihotri, Adv. for R-2
Mr. Ashok Desai, Sr. Advocate Mr.
Ashwani Mata, Sr. Advocate with Ms.
Kanika Agnihotri, Mr. Akashay Ringe &
Mr. Sunil Mittal, Advocates for R-3.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The present petition filed as a public interest litigation, impugns the
order dated 31st December, 2008 of the National Environment Appellate
Authority (NEAA) dismissing the appeal filed by the petitioner against the
letter dated 26th December, 2007 granting environment clearance to
respondent No.3 M/s Monnet Ispat and Energy Ltd for setting up of
integrated steel plant at Naharpali, Kharsia, Raigarh, Chhattisgarh. Notice of
the petition was issued. Counter affidavit has been filed by respondent No.3.
The proceedings in this petition were adjourned sine die in pursuance of an
order dated 29th July, 2009 of the Supreme Court in Transfer Petition (C)
No. 677-678/2009 filed by respondent No.3. On 19th May, 2010, it was
informed that the Transfer Petition had been disposed off by the Supreme
Court. Accordingly, this petition was listed for hearing. Since respondent
No.3 in its counter affidavit was also contesting the territorial jurisdiction of
this Court to entertain this petition, this petition was thereafter taken up for
hearing by the Full Bench constituted to test the correctness and soundness
of the decision of an earlier Full Bench of this Court in New India
Assurance Company Limited v. UOI AIR 2010 Del. 43 (FB). The said Full
Bench rendered judgment dated 1st August, 2011, partially overruling and
clarifying the decision in New India Assurance Company Limited (supra).
The said judgment of the latter Full Bench is reported as M/s Sterling Agro
Industries Ltd. v. Union of India & Ors. AIR 2011 Del. 174. Thereafter,
this petition was again listed for hearing. We have heard counsel for the
parties.
2. It is the case of the petitioner that the environment clearance dated
26th December, 2007 for the aforesaid project of respondent No.3 was
granted without completing the process of public hearing and on the basis of
faulty Environment Impact Study; that the procedure prescribed in the
Environment Impact Notification of 2006 was not followed. The petitioner
further pleads that respondent No.3, on 30th May, 2007 applied to the State
Pollution Control Board for conducting public hearing; that the notice of the
public hearing scheduled on 4th August, 2007 was published on 27th June,
2007; that the petitioner vide its letter dated 1 st August, 2007 sought
cancellation of the said public hearing for the reason of commencement of
construction by respondent No.3 even prior to Environment Clearance and
violation of environment laws by respondent No.3; that the Chhattisgarh
Environment Conservation Board however went ahead with the public
hearing in which the petitioner participated and pointed out inadequate,
misleading and false data submitted in the Environment Impact Assessment
(EIA) Report; that the EIA consultant at the said hearing agreed that the EIA
Report was inadequate and asked for 15 days‟ time to rectify the same and
file afresh; that accordingly, the public hearing was postponed by 15 days
with assurance to be held again after 15 days; however, without completion
of the public hearing, Ministry of Environment and Forest (MOEF)
accorded environment clearance dated 26 th December, 2007. That appeal
(being appeal No.2/2008) was preferred by the petitioner to the NEAA, was
dismissed on 31st December, 2008 on the ground that the petitioner had no
locus to prefer the appeal.
3. It is the contention of the petitioner in the writ petition that it has the
locus and the appeal ought to have been heard and decided on merits.
4. Respondent No.3, in its counter affidavit, has pleaded that the
challenge, if any to the order of the NEAA, ought to have been made by a
writ, which, according to the roster of this Court, would have been heard by
a Single Judge of this Court; that the colour of public interest litigation
has been given to have the same heard by the Division Bench; that a public
interest litigation is not maintainable. It is further the plea of the respondent
No.3 that its proposed plant is in the State of Chhattisgarh; the environment
clearance dated 26th December, 2007 even though granted by the MOEF,
Government of India, New Delhi is to be challenged before the High Court
of Chhattisgarh; that the entire case against the grant of the said
environment clearance is based on the complaint of one Raghuvir Pradhan
who claim to be associated with an NGO called Ekta Parishad; that the said
Ekta Parishad through its member Ramesh Sharma along with Ram Kumar
Aggarwal filed a writ petition before the High Court of Chhattisgarh
challenging the said clearance and which writ petition is still pending; that
the present writ petition on behalf of Jan Chetna as also the statutory appeal
before the NEAA are filed through one Sh. Ramesh Aggarwal who is
related to Ram Kumar Aggarwal of Ekta Parishad; that the petitioner is a
middlesome interloper; that the PIL jurisdiction of this Court cannot be
invoked in respect of an industry situated in the State of Chhattisgarh; that
the challenge made in this petition can also be made either by filing a fresh
petition in the Chhattisgarh High Court or by adding to the petition already
pending in that court; that no written objections were filed by the petitioner
or anybody else in response to the public notice; that Shri Ramesh Aggarwal
has also filed a representative civil suit in the Court of District Judge,
Raigarh against respondent No.3 and other authorities for injuncting holding
of public hearing, declaration and seeking compensation for environmental
damage; that in the public hearing held on 4-8-2007, arguments were heard
and objections rejected vide speaking order dated 4.08.2007; that thereafter
the said Ram Kumar Aggarwal and Ramesh Sharma along with others
reached the venue of public hearing and held out threats to the persons
holding the hearing; that the Additional Collector, Raigarh present at the
hearing, in the circumstances adjourned public hearing for 15 days, but
which he was not entitled to do; that the Regional Manager of Chhattisgarh
Environment Conservation Board conducting hearing who was the only
competent authority under the EIA Notification, had not adjourned the
hearing and had rather reported that the public hearing had been completed
in all respects and final decision may be taken; that again applications for
injunction were filed in the pending suit as well as the writ petition
aforesaid. Respondent No.3 thus pleads that multiple remedies as are being
pursued before the civil court, the High Court of Chhattisgarh and this
Court, when cannot be permitted. It is further the plea of respondent No.3
that the petitioner does not qualify to be an association of persons under the
NEAA Act 1997 and thus the appeal preferred by it was rightly dismissed.
5. Respondent No.2, Chhattisgarh Environment Conservation Board, in
its reply has pleaded, that the petitioner, by filing a public interest litigation
has established that it is not a person or association of persons likely to be
affected and who alone can maintain an appeal before the NEAA. It is
further pleaded that action has already been taken against respondent No.3
for violation of environment laws by commencing construction activities
prior to environment clearance. It is further clarified that the public hearing
was for expansion project and though has supported the case of the
petitioner that the public hearing was adjourned, but pleaded that its purpose
stood served.
6. The counsel for the petitioner on the aspect of territorial jurisdiction
has contended that since the environment clearance was granted at Delhi
and the NEAA is also at Delhi and held hearing at Delhi, this Court would
have jurisdiction. He has also relied upon the order dated 22.4.2009 vide
which notice of this petition was issued indicating that "petition will be
heard finally at the admission stage itself", and contends that this Court has
in its discretion opted to entertain this petition in this Court. He further
contends that as far as the reason given by the NEAA for rejecting the
appeal preferred by the petitioner is concerned, the same is no longer good
in view of the judgment dated 14.09.2009 of the Division Bench of this
Court in LPA No. 277/2009 titled Vedanta Alumina Ltd v. Prafulla
Samantra & Ors. He has taken us through the English translation of the
report of the public hearing prepared by the Additional Collector, Raigarh to
demonstarate that public hearing was adjourned. It is argued that without
holding adjourned hearing, environment clearance was given. He has further
invited our attention to the reply filed by the Chhattisgarh Environment
Conservation Board before the NEAA where, initiation of legal action
against respondent No.3 for commencing construction prior to receipt of
clearance is admitted. On the basis thereof it is argued that since the action
against respondent No.3 was taken on the complaint of the petitioner,
NEAA was wrong in holding the appellant to be not an aggrieved person.
He further states that the writ petition in Chhattisgarh High Court was filed
by another environment group and which has since been withdrawn.
Though, it is admitted that the civil suit aforesaid was filed by the petitioner,
but it is argued that the same was filed before grant of clearance and in any
case, proceedings therein have been stayed by the High Court. It is further
argued that the Supreme Court having dismissed the transfer petition
preferred by respondent No.3, it is now not open to respondent No.3 to urge
that this petition is not maintainable before this Court.
7. The senior counsel for respondent No.3 has though not challenged
that this Court would have territorial jurisdiction owing to the environment
clearance under challenge having been issued within the jurisdiction of this
Court and owing to NEAA whose order is challenged being also situated
within the jurisdiction of this Court, has contended that on the application of
principle of forum convenience, it is not convenient for this Court to
adjudicate the matter. He has, with the assistance of list of dates, shown the
proceedings initiated/pending in the courts of the State of Chhattisgarh and
argued that the petitioner having opted to go to the Chhattisgarh, ought to
file the writ petition also in that High Court only. It is emphasized that the
suit has not been given up till now. The petitioner is also accused of
suppression of material facts. Reliance is placed on Paragraphs 34 to 36 of
K.D. Sharma v. Steel Authority of India Limited and Ors (2008) 12 SCC
481 to contend that the petition is liable to be dismissed on this ground
alone.
8. The counsel for the petitioner, in rejoinder, has argued that the NEAA
Act has since been repealed by the National Greens Tribunal Act, 2010
which Tribunal is also situated in Delhi and as per which the suit is not even
maintainable. It is also contended that vide Section 18 of the said Act, the
question of locus has been considerably relaxed. It is also argued that the
suit was disclosed before the NEAA and thus, no motives can be attributed
to the petitioner in not mentioning the same in this petition. He has also
stated that the petitioner is willing to withdraw the suit.
9. We will first take up the plea of territorial jurisdiction. Though the
earlier Full Bench of this Court in New India Assurance Company Limited
(supra), had held that the principle of forum non-convenience is not
applicable to domestic law and once this Court has jurisdiction under Article
226 of the Constitution to entertain the petition, it cannot refuse to exercise
the said power on the doctrine of forum non-convenience, however the
subsequent Full Bench in M/s Sterling Agro Industries Ltd., has held that
the Court, nothwithstanding having jurisdiction can refuse to entertain a
petition under Article 226 invoking the doctrine of forum non-convenience
if it is not convenient territory to entertain the petition or if some other
Court is a more convenient Court to entertain the petition.
10. We have recently in judgment dated 17.02.2012 in LPA 960/2011
titled Vishnu Security Services v. Regional Provident Fund
Commissioner, held that for ousting the jurisdiction of the Court on the
doctrine of forum non-convenience, a case of another Court being better
equipped and convenient Court for all parties concerned, has to be made out
and the Court cannot refuse to exercise jurisdiction by mere lip service to
the said doctrine. Applying the said principle, we find that the only ground
urged by respondent No.3, for the Chhattisgarh High Court being a more
convenient Court to adjudicate this lis, is the pendency of a writ petition
filed by another party in the said High Court and which writ petition also
according to the petitioner stands withdrawn. We are, however, of the view
that the same cannot be the basis for this Court to refuse to exercise
jurisdiction. Admittedly the petitioner is not a party to that writ petition.
Moreover, attempt of respondent No.3 to have both the writ petitions
transferred to one Court by moving a Transfer Petition to the Supreme Court
has already failed. Even otherwise, mere pendency of a proceeding in other
court can form a ground for refusing to exercise jurisdiction on the doctrine
of forum non-convenience only upon it being shown that the two
proceedings are so intertwined so as to lead to the possibility of conflicting
judgments. However, what we have here is that while the petition in the
Chhattisgarh High Court, if still pending, was filed prior to the public
hearing, the challenge in this petition is predicated only on the ground of
rejection of the appeal of the petitioner by the NEAA. The scope of the two
proceedings is thus entirely different and there is no likelihood of any
conflicting judgments. Considering the nature of the challenge by the
petitioner in the present petition, we also find that the issue raised is purely
legal and though relating to a project in the State of Chhattisgarh, has no
local flavor at all for us to hold that the High Court of Chhattisgarh rather
than this Court, is better equipped to deal therewith. We are similarly of the
opinion that the suit filed by the petitioner in Chhattisgarh is also
infructuous and is not concerned with the challenge made in this petition.
We, therefore, reject the challenge by respondent No.3 to the territorial
jurisdiction of this Court.
11. We also do not find any merit in the plea of respondent No.3 of the
petitioner being guilty of suppression so as to invite dismissal of the petition
on that ground alone. The facts concerning the proceedings in the Court in
the State of Chhattisgarh are not found to be material qua the limited
challenge in the present petition and suppression thereof is not found to be
such as designed to obtain any unfair advantage.
12. Coming to the merits of the challenge, the Division Bench of this
Court in Vedanta Alumina Ltd (supra) has unequivocally held on an
interpretation of Sec. 11 of the NEAA Act, 1997 that the expression
„aggrieved person‟ used therein denotes an elastic and to an extent an
elusive concept and has to be given the widest operation as the language
will permit. Accordingly, it was held that an organization working in the
area in question, closely following issue of setting up of industries and the
impact thereof on the environment, would be a „person aggrieved‟ and
entitled to exercise of right to appeal. We have no reason to differ from the
said view. No argument also in this regard has been raised though clarifying
that the same should not constitute an admission. Once that is the position, it
axiomatically follows that the order of the NEAA under challenge in this
petition cannot be sustained. The same is accordingly set aside and the
appeal remanded to the NEAA and/or its successor for decision on merits.
No order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
MAY 11, 2012
'raj'
