THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Dated this, Friday, the 11th day of January, 2013 Appeal No. 56 of 2012

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1 THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Dated this, Friday, the 11th day of January, 2013 Appeal No. 56 of 2012 Quorum: 1. Hon ble Mr. Justice M. Chockalingam, (Judicial Member) 2. Hon ble Prof. Dr. R. Nagendran, (Expert Member) BETWEEN 1) Janajagrithi Samithi (Regd) having its office at Nandikur Udupi district Represented by its President Shri Madhavaraya Bhat 2) Shri Jayanth Kumar S/o/ late Shri Krishna Moorthy Rao residing at New Murudi House Nandikur Post Yellur Village, Udupi District. 3) Shri Kariya Shetty S/o. Late Shri Mainda Shetty residing at Moodu Hosamane, House No. 6/50 Ullur, Kemmundel Post Yellur Village, Udupi Taluk and District. 4) Shri Balakrishna Shetty S/o/ late Shri Koraga Shetty House No. 1-17, Padebettu Thota Mane Padubidri Post , Udupi District 5) Shri Harishchandra S. Shetty S/o. Shri Shambraya Shetty Bhandara House, Door No. 6/23 Kemundel Post Yellur Village, Udupi District.... Appellants

2 2 AND 1) Karnataka State Pollution Control Board Parisara Bhavan, 49 Church Street Bangalore Represented by its Member Secretary 2) Udupi Power Corporation Limited Yellur Village, Nandikur Post Udupi District Represented by its Chief Functionary... Respondent(s) Advocates appeared: For Appellants: M/s. T. Mohan and A. Yogeswaran, Advocates on behalf of Shri Ritwick Dutta For Respondents Shri. T.K. Bhaskar, Advocate for R-1 and Shri Udaya Holla, Senior Advocate for Shri. P.N. Rajeswara for R-2 (Judgement delivered by bench) JUDGEMENT This appeal has arisen from an order dated passed by the Karnataka State Appellate Authority, Bangalore (hereinafter referred to as Appellate Authority) under Water and Air (Prevention and Control of Pollution) Acts, 1974 and 1981, respectively, whereby the Appeal Nos. 01 of 2012 and 05 of 2012 were dismissed by a common order. 2) Short facts necessary for the disposal of the appeal can be stated thus: 3) The 1 st appellant is a society registered in 1987 under the Societies Registration Act whose members are residents of Nandikur and other neighbouring villages in the district of Udupi. The society has evinced interest to protect the villages from the activities of Government and private agencies for exploitation of environment. The 2 nd to 5 th appellants are residents of villages neighbouring to the Udupi Thermal Power Plant. Despite violation and grave impacts of Udupi Thermal Power Plant which adversely affected the livelihood and human health, the 1 st respondent Board granted consent order on without considering the damages already caused and also not providing mitigating measures to control or to prevent pollution to air and water. The Udupi Thermal Power Plant began its operations in May The 1 st respondent issued number of notices and objections to the 2 nd respondent. Following number of inspections and reports, personal hearings were held on different dates. Despite the complaints with regard to the grave damages caused by the 2 nd respondent, a combined consent was granted by

3 3 the 1 st respondent to the 2 nd respondent on 9 th December This combined consent order was challenged by the appellants before the said Appellate Authority in appeal Nos. 1 and 5 of 2012 which was dismissed by the Appellate Authority by a common order dated and the same is the subject matter of this appeal. 4) Advancing the arguments on behalf of the appellants, the learned counsel Shri T. Mohan would submit that the Appellate Authority has erroneously dismissed the appeal on the ground that the same was not maintainable. The said finding that the appellants were not aggrieved persons is perverse and based on flawed interpretation of the statutes. The 1st respondent is an organisation of persons affected by the Udupi Thermal Power Plant and has been highlighting the adverse impact of the project and has also filed a Writ Petition challenging the project on various grounds. The 2 nd, 3 rd, 4 th and 5 th appellants living in the locality were victims of large scale damage to the agricultural lands, surface water, wells in particular, environment in general and the health of the people. Hence under the circumstances, all the appellants have to be termed only as aggrieved persons and they are competent to prefer an appeal under Section 31 of Air Act and Section 28 of Water Act. The appellants made so many complaints to the 1 st respondent and no doubt they were aggrieved persons, by the action of the 1 st respondent, namely the impugned order. The Appellate Authority has erroneously held that the appellants were not persons aggrieved. Only a person who has sought for consent from the Board and no one else can prefer an appeal under the Acts, is only a wrong interpretation of the said Acts. It is also not correct that the appellants were not aggrieved persons since the provisions state that a person might prefer an appeal within 30 days from the date of communication of the order. The consent order dated 9 th December 2011 was not communicated to the appellants and hence they could not prefer an appeal. Equally, the Appellate Authority has erroneously relied upon the Form No. 7 of the Karnataka (Prevention and Control of Pollution) Rules 1983 to sustain its above interpretation. The Appellate Authority has not considered the judgements relied on by the appellants to the effect that the expression aggrieved person includes any person affected by the order apart from the appellants who sought for the consent order. 5) The learned counsel for appellants would further urge that the Appellate Authority has erroneously relied upon the judgements which were not applicable to the facts and circumstances of the case. The findings of the Appellate Authority that the person aggrieved can only be the one who sought consent is unsustainable since the very object of the Act is to serve the public interest by preventing pollution and thus the persons who are affected are certainly entitled to prefer appeals before the Appellate Authority. The phrase persons aggrieved in environmental statutes should give a purposive and liberal interpretation. The denial of rights to file an appeal for the appellants would virtually defeat the legitimate intents of the enactment. The impugned order was not in consonance with the principles of natural justice since it has held that the affected people did not have the right to appeal

4 4 though the impact of pollution was clear and evident, even in the face of official records. The conclusion taken by the Appellate Authority that an appeal is a creature of statute and that only if the statute expressly gives a person a right to appeal, he alone can do so and not others, though affected is thoroughly erroneous. In the instant case, a proper, harmonious and constructive interpretation of both water and Air Acts make it clear that the aggrieved person would not only include who seeks the consent but every person affected by the grant of consent and hence the appeal has to be allowed by setting aside the impugned order. 6) In order to strengthen his arguments, the learned counsel for appellants relied on the following rulings: 1) The District Collector, Nellai Kattabomman Dist, Tiruneveli and another Vs. The Rajapalayam Cement and Chemicals Ltd., reported in 1997 Writ L.R. P.157 2) The Perundurai Citizens Welfare Society Vs. Tamil Nadu Pollution Control Board reported in (2005) 1MLJ252 7) Vehemently opposing all the contentions putforth by the leaned counsel for appellants, Shri Udaya Holla, the learned senior counsel appearing for the Respondents would submit that the Appellate Authority was perfectly correct in coming to the conclusion that the appellants were not aggrieved persons who could prefer appeal since the provisions relating to appeal in both the enactments are clear and unambiguous and appeal could be preferred only by the person who sought for the consent order or the respondent Board and no one else. An appeal is a creature of statute and hence to prefer an appeal, the statute should expressly provide a person the right to appeal. The appellants who were not expressly provided with the right to appeal cannot prefer an appeal. In the instant case, the appellants are unable to point to any provision which conferred them the right to appeal against the orders of the 1 st respondent. 8) Pointing to Section 28 of the Water (Prevention and Control of Pollution) Act, 1974, the learned senior counsel would submit that any person aggrieved by an order made by the 1 st respondent under Section 25, 26 or 27 can prefer an appeal within 30 days from the date the order is communicated to him. This would clearly indicate the person to whom the order, which is sought to be challenged, should have been communicated and he alone can prefer an appeal and the appellants are third parties, who were not communicated with the orders in question and hence they cannot call themselves as aggrieved persons. Relying on sub-section 4 of section 28 of the said Act, the learned senior counsel would argue that an opportunity of being heard should be given only to the appellant or the State Board by the Appellate Authority before disposing of the appeal and to no one else. The appeal provisions under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 stands

5 5 pari materia with the appeal provisions in the Water (Prevention and Control of Pollution) Act, The learned senior counsel pointed out that even the reading of form No. 7 of the Karnataka (Prevention and Control of Pollution) Rules 1983 would show that the appellant who comes before an authority in the appeal should be the person who has been granted consent under Section 25 and not any other person and the rules make it clear that the appellant should be a person aggrieved by the order made by the Board under Section 20, 21 or 22 of the Air Act. Thus, the appellant cannot have an inherent right of appeal from the impugned order unless an appeal is expressly provided for by the concerned enactment. If the contention of the appellant that an appeal can be preferred by any person calling himself an aggrieved person, there would be all possibilities of black mailing the industry by threatening to prefer an appeal against the order of consent. 9) The contention put forth by the learned counsel for appellant that any person in whose favour the consent order is made will not come forward to prefer an appeal has to be rejected for the reason that in any given case the consent order is given stipulating conditions to be fulfilled by the proponent and if aggrieved, he could prefer an appeal challenging the imposing of such conditions. It is not that the appellant has got no alternative remedy if aggrieved by an order of consent given to the 2 nd respondent. He could well make a revision application under Section 29 of the Water (Prevention and Control of Pollution) Act, 1974 or under Section 31A of the Air (Prevention and Control of Pollution) Act, The sections 29 and 31A of the respective Acts above make it clear that when any person is aggrieved by an order made under Section 25, 26 or 27 of the Board, he can make revision application and the State Government should not pass an order without affording a reasonable opportunity of being heard to the State Board and the person who sought to be affected by such an order. Thus, there could not be any impediment for making application under the revisional provisions. 10) It is true that the appellants attempted to raise questions with regard to the validity of the consent order and so long as the right to appeal is not specifically provided, the appellant could not make an appeal and the Appellate Authority is correct in dismissing the appeal and hence the impugned judgement of the Appellate forum has got to be sustained. 11) In order to substantiate his contentions, the learned senior counsel for the Respondents relied on the following rulings: 1) Durga Shankar Mehta Vs. Raghuraj Singh and others, AIR 1954 S.C. 520 (Vol. 41, C.N. 123) 2) The Commr. of Sales Tax, UP Vs. Mangal Sen Sivam Lal, AIR 1975 SC 1106

6 6 3) Super Cassettes Industries Ltd Vs. State of Uttar Pradesh and another (2009) 10 SC Cases 531 4) Gwalior Rayons Silk Mfg (WGV) Co Ltd., Vs. Custodian of Vested Forests, Palghat and another 1990 (Supp) SC Cases 785 5) Wasudeo Madhaorao Assarkar and another Vs. The State of Maharashtra AIR 1976 Bombay 94 (At Nagpur) 6) B.K. Ramesh Rao Vs. Secretary, Regional Transport Authority - ILR 1989 KAR ) Order dated in W.P. Nos. 936 and of 2006 of High Court of Karnataka Sri C.J. Singh, son of late Atam Singh Kochar Vs. State of Karnataka and Paranjape Schemes Bangalore Vs. Karnataka State Pollution Control Board. 12) The questions that arise now for consideration are: i) Is the appeal made in appeal Nos. 1 and 5 of 2012 by the appellants against the combined consent order of the Board issued by the 1 st respondent before the Appellate Authority is maintainable? and (ii) To what relief the appellants are entitled for? 13) Admittedly, the appellants herein challenged before the authority below a combined consent order dated granted by the 1 st respondent to the 2 nd respondent under Water Act 1974 and Air Act 1981 for the coal based Udupi Thermal Power Plant Unit No. I at Yellur with ash dumping at Santhur in Udupi District, in appeal Nos. 1 and 5 of 2012, whereby the Appellate Authority dismissed the appeals on the ground of maintainability. Hence the legality or otherwise of the combined consent order on merits does not arise for consideration in this appeal. 14) The Tribunal paid its anxious consideration on the submissions made by the counsel on either side on the maintainability of the appeals made before the Appellate Authority as recorded above. 15) At the outset, it would be more appropriate to reproduce the relevant provisions in the Act. Section 28 of the Water Act states as follows: (1) Any person aggrieved by an order made by the State Board under section 25, section 26 or section 27 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority (hereinafter referred to as the Appellate Authority) as the State Government may think fit to constitute: (2) xxx

7 7 (3) xxx (4) On receipt of an appeal preferred under sub-section (1), the Appellate Authority, shall, after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible. Section 31 of the Air Act states as follows: (1) Any person aggrieved by an order made by the State Board under section 25, section 26 or section 27 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority (hereinafter referred to as the Appellate Authority) as the State Government may think fit to constitute: (2) xxx (3) xxx (4) On receipt of an appeal preferred under sub-section (1), the Appellate Authority, shall, after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible. 16) As seen above, the authority below has dismissed the appeal as not maintainable since the appellants were not persons aggrieved as envisaged under the above provisions. The conclusion arrived at by the Appellate Authority that the appeals can only be preferred by the persons who have sought for the consent of the respondent Board cannot stand the scrutiny of law. In a given case, when the proponent applied for grant of consent order, if denied or granted, then there is no need for the Board to prefer an appeal. The proponent who sought for the consent order for a project can maintain an appeal if there was a denial or he could challenge the conditions stipulated along with the consent order granted to him. Needless to say that if he is satisfied with the grant of the consent along with the conditions stipulated, there is no need to prefer an appeal. It is pertinent to point out that the words employed in both the provisions of the Acts speaking of appeal by any person aggrieved will make it abundantly clear that not only the proponent who is aggrieved over the denial of grant or the stipulation of conditions but also any person aggrieved over the grant of such consent orders. If, really the intention of the Legislature was to give right of appeal only to the proponent or applicant, the necessary words to that effect could have been employed, but it is not done so. The contention putforth by the learned senior counsel for the respondent that the appeal should be preferred within 30 days from the date on which the order was communicated to him and the appellant should be given an opportunity of being heard as per section 28 (4) and section 31 (4) of the relevant Acts before disposal of the appeal cannot be countenanced for the simple reason that, when an order is made by the Board on an application made by the proponent for the grant of consent order, the order made

8 8 thereon cannot but be communicated only to him and equally sub-section 4 mandates that an opportunity should be given to the appellant who prefers an appeal being aggrieved by the order of the Board. 17) A Green Bench of the Madras High Court consisting of Hon ble Chief Justice and Hon ble Mr. Justice Raju in the matter of the District Collector, Nellai Kattabomman Dist, Tiruneveli and another Vs. The Rajapalayam Cement and Chemicals Ltd., reported in 1997 Writ L.R. P.157 had an occasion to consider the interpretations of the phrase any person aggrieved in section 28 of the Water Act 1974 had held any person aggrieved would include objectors. Paragraph 14 of the said judgement reads as follows: 14. In this background when the fourth respondent preferred an appeal before the Appellate Authority, we shall have to consider whether the Appellate Authority, in the light of the provisions contained in S.28 of the Act was required to accord an opportunity of hearing. We have already indicated that the petitioner, who represents the interest of the villagers of the villages, surrounding the cement factory, cannot be held to be a person, having no interest in the proceeding. That being so, the Appellate Authority ought to have given an opportunity to the petitioner. We may also approach this issue from another angle. S. 28(4) of the Act provides that on receipt of an appeal preferred under sub-section (1), the Appellate Authority, shall after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible. Sub Sec (1) of S.28 of the Act provides that any person aggrieved by an order made by the State Board under S.25, S.26 or S.27 may within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority. In the event the Application seeking for consent is rejected, applicant will be entitled to come up in the appeal. In the event, the Application is allowed and the consent is granted and if any person has objected to it, he cannot be considered to be the person not aggrieved. Section 28(1) of the Act specifically provides that any person aggrieved. If the words any person aggrieved are confined only to the appellant, who has sought for consent, there cannot be any other person, except the appellant. When the object of the Act is to subserve the public interest by preventing pollution and maintaining and restoring of wholesomeness of water, naturally persons who are going to be affected by the proposed industrial unit as a result of the water and air pollution are entitled to file their objections, as such they fall under the category of any person aggrieved. Therefore, we are of the

9 9 view that the words contained in sub-s(4) of the Act take into fold the persons who had objected and failed in the matter of grant of consent. The Appellate Authority ought to have issued notice to the appellants in W.A of 1995 and afforded an opportunity of hearing. In fact, he should have made them a party to the appeal. Hence point No. 1 is answered in the affirmative. A reading of the above decision will make it abundantly clear that any aggrieved person would include also the complainants or objectors, who were appellants in the instant case and no impediment is felt in applying the above decision in the present case to hold so. 18) It is not in controversy that in the instant case the appellants had preferred a number of representations and objections pursuant to which reports were submitted by the authorities to the Board following their inspections. The learned counsel for appellants took the Tribunal to different parts of the reports where the inspecting authorities noted deficiencies and violations. Under such circumstances, when the Board has given consent order to the proponent, the appellants are indeed aggrieved persons and an opportunity to ventilate their grievances cannot be denied. 19) Much reliance was placed on the findings of the Apex Court reported in A.I.R S.C. 520 (Vol. 41, C.N.123) in the matter of Durga Shankar Mehta Vs. Raghuraj Singh and others and the learned senior counsel would urge an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself. There cannot be any quarrel on this settled proposition of law. As pointed out above, the appellants fall within the phrase aggrieved persons as envisaged in section 28 and 31 of the respective enactments. 20) The contention put forth by the learned counsel for the respondents that the applicants do not have statutory right to appeal and hence they can avail the provision for making the revision under the enactments, though attractive at the first instance, cannot be countenanced, as it does not stand the scrutiny of law. Since the phrase aggrieved person, would no doubt include the appellants, who were the original complainants and the objectors, they could well maintain appeals under appeal provision of the said enactment. The appellants, even if they file writ petition by invoking writ jurisdiction of the High Court, they would be directed to approach the National Green Tribunal to ventilate their grievance. The appellants, in the instance case, cannot approach the National Green Tribunal at this stage for two reasons: firstly, the National Green Tribunal Act does not confer right on the appellants to approach National Green Tribunal directly, if aggrieved by the consent order as done in the instance case. Secondly, if the appellants are allowed to directly approach the

10 10 National Green Tribunal, it would be allowing them to prefer appeal directly bypassing a statutory remedy available to them before the Appellate Authority. 20) Apart from the above, as could be seen from the report, some of the appellants are having their landed properties such as agricultural lands, wells, etc., near to the plant in question and had complained that there would be large scale damages to the agricultural lands, surface water, wells in particular and the environment in general and the health of people and if the allegations were true, they were directly affected by the environmental pollution from the plant. The appellants are interested persons in the environment and ecology of the area. Under these circumstances, they can be called, no doubt, as aggrieved persons since they apprehend danger to human lives and their properties. The Tribunal is of the view that the person aggrieved in environmental matters must be given a liberal construction and it needs to be flexible. The above view is also strengthened by the provisions of the Constitution of India in Articles 48A and 51A (g) which read thus: Article 48 A. Protection and improvement of environment and safeguarding of forests and wild life: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51A.Fundamental duties: It shall be the duty of every citizen of India -- (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures; 21) The reading of the above provisions would make abundantly clear that the State should endeavour to protect and safeguard the environment and it is also the fundamental duty of the citizen to improve natural environment which would include fertile land and forests also. While the protection and improvement of environment is the fundamental duty of the citizen, any person who is really aggrieved should be allowed to agitate his grievance in order to get protection and also for the improvement of environment. Needless to say that the statutory provisions are always subservient to the mandate of the Constitution. Thus any person aggrieved as occur under section 28 of the Water Act or Section 31 of the Air Act cannot be placed above every citizen as appearing in Article 51 A of the Constitution of India. In that view also, the appeals preferred by the appellants before the Appellate Authority should have been entertained. Thus, after considering the submissions and looking into the provision of law and also the decisions relied on by the learned counsel of either side, the Tribunal is of the considered view that the appellants who preferred appeals before the Appellate Authority are aggrieved persons who can maintain appeal.

11 11 22) In view of the above, the appeal is allowed setting aside the combined order dated in Appeal No. 01 of 2012 and 05 of 2012 of the Karnataka State Appellate Authority, under Water and Air (Prevention and Control of Pollution) Acts, 1974 & 1981 and the matter is remanded to Appellate Authority with directions to take the appeals on file, enquire and pass suitable order on merits and in accordance with law. No order as to costs. (Prof. Dr. R. Nagendran) Expert Member (Justice M. Chockalingam) Judicial Member