Land Acquisition- Environment Clearance

In various judgments hon'ble High Courts has asserted that that unless permission given by the Environment Ministry is challenged, the Writ petition to challenge a public hearing of land acquisition is liable to be dismissed. The said requirement affirm a fundamental flaw which is present throughout the filling of said writ petition (the “Petition”). In Pursuance of the said directions & to conceal the said flaw in the petition, the Petitioners subsequently amend the writ petition to challenge the environment clearance granted by the Govt. of India. But the petitioner failed to appraise and understand the legal requirement for approaching the said remedy, and the contents of the said amendment are not some new developments, which were never reflected in the original petition, hence should be disallowed.

The Environment Protection Act 1986 and National Green Tribunal Act, 2010 and various Supreme court judgments does not support the amendment to the writ petition, the challenge to which can only be done before National Green Tribunal for the following reason stated herein:

I.          Maintainability of amendment to the present writ petition:

Various Supreme Court Judgments, the Environment Protection Act and National Green Tribunal Act clearly bar the jurisdiction of civil court in the matter related to approval given under the Environment Laws. And the same shall lie only before National Green Tribunal, appeal of which lies before the Supreme Court.

ü Supreme Court Direction:

In the case of Bhopal Gas Peedith Mahila Udyog Sangathan and Others vs. Union of India and Others reported in (2012) 8 SCC 326 (Para 40 and 41), the Supreme Court clearly issued direction in respect of all proceedings, which are to be filed before the National Green Tribunal as per the Act of 2010. In Para 40 and 41 of the judgment, the Court has observed thus:-

40. Keeping in view the provisions and scheme of the National Green Tribunal Act, 2010 (for short "the NGT Act") particularly Sections 14, 29, 30 and 38(5), it can safely be concluded that the environmental issues and matters covered under the NGT Act, Schedule I should be instituted and litigated before the National Green Tribunal (for short "NGT"). Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and NGT. Thus, in unambiguous terms, we direct that all the matters instituted after coming into force of the NGT Act and which are covered under the provisions of the NGT Act and/or in Schedule I to the NGT Act shall stand transferred and can be instituted only before the NGT. This will help in rendering expeditious and specialized justice in the field of environment to all concerned.

41. We find it imperative to place on record a caution for consideration of the courts of competent jurisdiction that the cases filed and pending prior to coming into force of the NGT Act, involving questions of environmental laws and/or relating to any of the seven statutes specified in Schedule I of the NGT Act, should also be dealt with by the specialized tribunal, that is the NGT, created under the provisions of the NGT Act. The Courts may be well advised to direct transfer of such cases to NGT in its discretion, as it will be in the fitness of administration of justice.

ü  THE ENVIRONMENT (PROTECTION) ACT, 1986

22. BAR OF JURISDICTION

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken or order or direction issued by the Central Government or any other authority or officer in pursuance of any power conferred by or in relation to its or his functions under this Act.

ü  National Green Tribunal Act, 2010

Chapter V Miscellaneous

29. Bar of jurisdiction. –

1.     With effect from the date of establishment of the Tribunal under this Act, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction.

2.     No civil court shall have jurisdiction to settle dispute or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the civil court.

30. Cognizance of offences. –

1.     No court shall take cognizance of any offence under this Act except on a complaint made by-

a.     the Central Government or any authority or officer authorised in this behalf by that Government; or

b.    any person who has given notice of not less than sixty days in such manner as may be prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.

2.     No court inferior to that of a Metropolitan Magistrate or, a Judicial Magistrate of the first class shall try any offence punishable under this Act.

It is clear that in all civil cases for the 'substantial question of which is related to ‘environment & related disputes' or ‘any permission/direction/notification given by the Central Government’ shall lie in National Green Tribunal only. Above sections has a expressions of wide connotation and had to be liberally construed to achieve object of 2010 Act.

Once legislature had used such expressions of wide connotation intentionally and intended to enlarge scope of Act to consider all civil cases raising question of environment then by process of interpretation, it would not be permissible to restrict that jurisdiction that springs from such legislative intent. In civil case which raise question relating to environment, Tribunal should have jurisdiction to decide disputes arising out of such question. Therefore there was no need to carve out any exception for exclusion which was not spelt out by legislature itself.

 Petitioner had not been able to make case of non-performance of statutory obligation by Central and State Government and other authorities concerned. Petitioner had legal right to only approach Tribunal and pray for relief within scheme of 2010 Act. Petitioner has not raised any substantial question relating to environment with reference to the present petition.

Therefore it should be accepted that the said amendment and the petition thereto, does not raise substantial question of environment. Hence the petitioner shall not be allowed to make the amendment and the challenge Application is maintainable only before Tribunal.

II.          Limitation Period:

And accordingly pursuant to Section 14 & 16 of National Green Tribunal Act, 2010, the limitation period has already been expired. The amendment relates to the findings which were validly before the Tribunal, and which is barred by limitation.

National Green Tribunal Act, 2010

Chapter III Jurisdiction, Powers and Proceedings of the Tribunal

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.

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;

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;

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;

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;

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;

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;

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;

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;

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;

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,

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.

III.            Bar in the impugned Environment clearance

Further to the above exposition, it is pertinent to mention that even the environment clearances given by the Govt. says that:

“Any appeal against this environment clearance shall lie with the National Green Tribunal, if preferred, within 30 days as prescribed under Section16 of the National Green Tribunal Act, 2010”