QUORUM NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH (DELHI) 1. HON BLE SHRI JUSTICE C.V RAMULU, JUDICIAL MEMBER 2. HON BLE DR. DEVENDRA KUMAR AGRAWAL, EXPERT MEMBER MA NO. 1 of 2011 IN Between APPEAL NO. 3 OF 2011 1. The Sarpanch, Grampanchyat Trioda District Sindudurg 2. Mr. Ajay Shivajirao Bhonsle Khashewadi, Trioda, Tal. Sawantwadi, District Sindhudurg 3. Mr. Surendra Vijayrao Bhonsle Khashewali, Trioda, Tal. Sawantwadi, District Sindhudurg VERSUS Applicants/Appellants 1. The Ministry of Environment & Forests, Through its Principal Secretary, Government of India, CGO Complex, Lodhi Road, New Delhi-3 2. Pollution Control Board Through Secretary, Kalpataru Point, 3 rd & 4 th Floor, Sion Matunga Scheme Road No. 8, Opp. Cine Planet Cinema, Near Sion Circle, Sion (E), Mumbai 400 022. 3. State of, Through the Chief Secretary, Mantralaya, Mumbai 4. The District Collector, Sindhudurg - 1 -
Sindhunagari, Oras, 5. M/s Gogte Minerals, Through its Director 146, Tilak Wadi, Belgaum-560 006 Karnataka 6. M/S infrastructure Logistics Private Limited, Through its Director, Cidade De Goa, Vainguinim Beach, Donapaula, Goa 403 004 Respondents Shri Nikhil Nayyar and Shri T V S Raghavendra Sreyas, Advocates for applicants/appellants and Shri Dhruv Mehta, Sr. Advocate along with Shri Yashraj Singh Deora, Advocate for the Respondent No.5 and Shri Saket Sikri, Advocate for Respondent No. 6. (Order delivered by the Bench) ORDER 1. This application is filed seeking stay of the order passed by the Respondent No. 1 dt. 31/12/2008 (No.I-11015/1026/2007-IA.II(M) and also seeking stay of the mining operations conducted by the Respondent Nos. 5 & 6 for the project Tiroda Iron Ore Mine at village Trioda in Sawantwadi Taluka of Sindhudurg District of state. 2. It appears that the Respondent No. 5 was granted Environmental Clearance by the Respondent No. 1 through its order dated 31/12/2008 for conducting mining operations at Trioda Iron Ore Mine (ML area 31.4812 ha with a Production Capacity of 0.40 MTPA) at Trioda Village, Sawantwadi Taluk of Sindhudurg District of state. Aggrieved by the same, the appellants herein had filed appeal before the then National Environment Appellate Authority (now stood abolished) in FR no. 45 of 2009. However, the said appeal was rejected at the threshold by an order dated 11/09/2009 on the ground that appeal was received after 222 days of the order passed by the authority as to Environmental Clearance; therefore, the appeal was rejected as time barred. 3. Aggrieved by the above order, the appellants herein approached the Hon ble High Court, Bombay in Writ Petition No. 7050 of 2010. The said Writ Petition was allowed by an order dt. 01/02/2011. The Order reads as under: 25. In the result, the petition is allowed. The impugned communication /order dt. 11 th September, 2009, of the National Environment Appellate Authority is here by quashed and set and the matter is remitted to the National Green Tribunal established under - 2 -
the National Green Tribunal Act 2010, for hearing the petitioners appeal on merits, after treating the same filed within the period of limitation. It will be open on the petitioners to move the tribunal for expeditious hearing of the appeal considering the fact that respondent no. 5 has already commenced mining activities in June 2009. The National Green Tribunal, we are confident, will consider the petitioners request in proper perspective. 26. It is clarified that we have not gone into the merits of the controversy between the parties and that it is only the question of limitation which has been decided by this court. 27. The Writ Petition, accordingly, stand disposed of. 4. Since, National Green Tribunal, though constituted, was non-functional, the appellants approached the Hon ble Supreme Court of India by way of filing Special Leave Petition (Civil) no. 7348 of 2011. On 04/04/2011, the Hon ble Supreme Court passed the following order: By the impugned order, the High Court while allowing the writ petition filed by the petitioners against the order of the National Environment Appellate Authority which has dismissed the application of the petitioners as barred by time, remitted the case to the Environment Appellate Authority, which as on date, is not functional. Even the National Green Tribunal constituted under the National Green Tribunal Act 2010 is non-functional. Issue notice to respondent no.1 only returnable in seven days dasti, in addition, is permitted. Since in a connected matter, we are being assisted by Ms. Indira Jaising, learned Additional Solicitor General, a copy of the special leave petition be made available to her as well. List the case on 11.04.2011. Shri Dhruv Mehta, learned senior counsel, who has appeared on caveat on behalf of respondent nos. 5 and 6, states that till the next date, his clients will maintain the status quo at the site as it is obtaining today. Further, when the matter had come up for hearing on 11/04/2011, following order was passed: Ms. Sadhna Sandhu, learned counsel assisting Ms. Indira Jaising, learned Additional Solicitor General appearing for respondent no.1, to whom a copy of the petition was delivered, requests that the case may be taken up on 18.04.2011 because the learned Additional Solicitor General is arguing case before another Bench. Learned counsel for the petitioners and the contesting respondent say that they do not have any objection. In view of the above, hearing of the petition is adjourned to 18.04.2011. The undertaking given on behalf of the contesting respondent shall continue till the next date of hearing. - 3 -
Again when the matter has come up on 18/04/2011, the following order was passed: The undertaking given on behalf of the contesting respondents on 04.04.2011 shall continue to operate till next date of hearing. Subsequently when the matter was listed for hearing on 10/05/2011, the following order was passed: In the meanwhile, respondent Nos. 5 & 6 are restrained from continuing the mining activities in the area in dispute. Finally, they said SLP(C) was disposed off on 15/05/2011 with a liberty to the applicants herein to approach this Tribunal. The Order reads as under: In today s proceeding in S.L.P (C) No. 12065 of 2009, the learned Additional Solicitor General informed the court that the National Green Tribunal (NGT) has already started functioning and four fresh petitions along with 26 transferred petitions have been entertained by the NGT and notices have been issued to the parties. In view of the statement made by the learned Additional Solicitor General, this petition is disposed with liberty to the petitioners to file appropriate petition/ appeal before the NGT with in a period of seven days along with an application for appropriate interim relief. The NGT may after hearing the parties pass appropriate order as early as possible but within fifteen days of the filing of the application. Till then, interim order passed by this court on 25 th April 2011 shall remain operative. The contesting respondent shall also be free to file appropriate application before NGT. That is how the matter has landed before this Tribunal. 5. Admission of the appeal is formal being statutory one. The appeal thus stands admitted. 6. Now, the order requires to be passed in the Miscellaneous Application seeking the prayer as noticed above. In a Miscellaneous Application of this nature, the balance of convenience between the parties needs to be examined. In this case, admittedly the Respondent No. 1 passed order granting Environmental Clearance on 31/12/2008. Eleven months thereafter, an appeal was filed before the National Environment Appellate Authority which was rejected in limini as - 4 -
time barred. Aggrieved thereby, Writ Petition No. 7050 of 2010 was filed before Bombay High Court in month of August 2010 i.e. again 11 months after the order passed by the National Environment Appellate Authority. It appears, during the pendency of Writ Petition, no interim order was passed by the Bombay High Court. Writ Petition however, was finally disposed of on 01/02/2011 allowing the Writ Petition and directing the National Green Tribunal to take up the appeal as if the appeal was filed in time and dispose it of on its merits. Since the National Green Tribunal was nonfunctional, the applicants approached to Hon ble Supreme Court, which had passed orders, on various dates, as noticed above. From the orders passed by the High Court of Bombay and the Hon ble Supreme Court, it is clear that the matter was not examined on merits. On the other hand, the Bombay High Court has taken note of the fact that the operation of mining commenced in the month of June 2009 and directed the National Green Tribunal to take up the appeal on merits. The Hon ble Supreme Court directed the parties to approach this Tribunal and this Tribunal was directed to pass orders on merit on the Miscellaneous Application as well as the appeal while maintaining the status quo orders granted on 04/04/2011 till the orders are passed by this Tribunal. 7. At the outset, though the learned counsel appearing for the applicants/appellants strenuously contended that, there are serious lapses on the part of the authorities in conducting the public hearing and in conducting the proceedings in other than the Marathi language and the environmental aspects of Environmental Impact Assessment report contain certain factual errors and the Coastal Zone Regulations were not adhered to strictly. The learned counsel had also taken us to various document filed to demonstrate these aspects. Prima facie, we are not impressed with the arguments of the learned counsel since he could not demonstrate anything substantial for the purpose of granting interim orders at this stage as an exceptional case. Further, in view of the fact that the mining operations had already commenced in the month of June 2009 as found by the Bombay High Court, we deem it not proper to go into merits at this stage for the purpose of examining the balance of convenience. It is suffice to notice that there was slackness on the part of the applicants/appellants in approaching the National Environment Appellate Authority or even the High Court of Bombay thereafter. The mining operations have commenced and it is more than one and half year since the mining operations are going on. The learned counsel appearing for the Respondent No. 5 also submitted that the undertaking given before the Hon ble Supreme Court was in the context of the fact that the Tribunal was non-functional at that point of time and the Hon ble Supreme Court sought for information from the learned Additional Solicitor General as to the formation of the National Green Tribunal. Further, the Hon ble Supreme Court did not deal with the matter on merits and directed the appellants to approach the Tribunal for appropriate orders. The iron ore extracted is stacked on the site and it would cause lot of inconvenience if it is not lifted before the onset of monsoon. Therefore, the applicants/appellants are not entitled for grant of any stay as prayed for and there is no balance of convenience of favour of the appellants. - 5 -
8. Having given our anxious consideration to the respective submissions made by the learned counsel on either side, we are of the considered opinion that the applicants/appellants are not diligent in pursuing the matter and the balance of convenience is not in their favour. On the other hand, the balance of convenience, in the facts and circumstances of the case, as noticed above, are in favour of the Respondent No. 5. Any stay granted in favour of the applicants/appellants, one and half years after the commencement of the mining operations, would certainly cause inconvenience to the Respondent No.5. Therefore, the Miscellaneous Application is devoid of merits and liable to be dismissed and is accordingly dismissed. No costs. 9. May be the applicants/appellants were not diligent, but in a matter concerning environment, the appeal cannot be allowed to be pending for long time. It has to be disposed of as early as possible. The proceedings before this Tribunal being summary in nature and the object of the National Green Tribunal Act is expeditious disposed of the matters come up before it, on insistence, the learned counsel for Respondent No. 5 has fairly given an undertaking before this Tribunal, to argue the matter on 04/07/2011 at 2.15PM without fail and if any adjournment is sought on behalf of the Respondent No. 5, without any justification, this Tribunal may pass any order making interim arrangement as required in the circumstances. The Respondent Nos. 1 to 4 and 5 to 6 shall file their response by 20 th June 2011 and shall serve the responses on the applicants/appellants. The Registry to issue notices returnable in 3 weeks and the Counsel for the applicants/appellants is also permitted to take out personal notices on the Respondent Nos. 1 to 4. List the matter on 04/07/2011 at 2.15 PM. (DR. DEVENDRA KUMAR AGRAWAL) ( JUSTICE C.V. RAMULU) DATE 25 th MAY 2011 EXPERT MEMBER JUDICIAL MEMBER - 6 -