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2014 DIGILAW 2838 (ALL)

SABIR KHAN v. STATE OF U. P.

2014-09-12

ASHWANI KUMAR MISHRA, KRISHNA MURARI

body2014
JUDGMENT Hon’ble Ashwani Kumar Mishra, J.—All the aforesaid connected writ petitions have been filed for similar reliefs and have been heard together. In the writ petition (C) No. 55900 of 2013 following prayers have been made : “(1) Issue a writ order or direction in the nature of certiorari quashing the condition No. 1 under the heading “Specific conditions” of the Environmental Clearance Certificate dated 24.4.2013, issued by the State Level Environment Impact Assessment Authority, SEIAA U.P., Lucknow. (2) Issue a writ order or direction in the nature of mandamus commanding and directing the respondents to permit the petitioner to carry out mining operation mechanically by using all the machines/equipments which can be used for mining. (3) To pass such other and further order’s which this Hon’ble Court may deem fit and proper under the facts and the circumstances of the present case.” 2. This Court while entertaining the writ petition had passed the following orders on 8.10.2013 : “Learned Standing Counsel appearing for respondent Nos. 1 to 5 prays for and is allowed three weeks’ time to file counter-affidavit. The petitioner’s case in the writ petition is that condition No. 1 under the heading of “Specific Conditions” in the Environment Clearance Certificate dated 24.4.2013 has already been challenged in Misc. Bench No. 3542 of 2013, Sushil Kumar Divedi and others v. Union of India and others. In the said case, Division Bench of this Court on 29.4.2013 has granted following interim relief: “Thus, we stay the operation of specific condition No. 1 of the certificate dated 30.11.2012, as contained in Annexure 1, relating to the environmental clearance issued by the State Level Environment Impact Assessment Authority, U.P. Lucknow. Consequently, the petitioners would be entitled to go for semi-mechanised mining, subject to completing the official formalities, if any, required in the matter in terms of recommendation No. 9 as noticed hereinabove. Besides, this interim order is being passed on the facts of this case, for, learned Senior Counsel submits that except the formalities required to be completed for the Semi mechanised mining, the petitioners have completed all other requirements in this matter. The parties shall complete the pleadings before the next date of hearing. List the matter on 21.5.2013 for final disposal.” Learned Counsel for the petitioner submits that the issues raised in the writ petition are similar to those of Misc. The parties shall complete the pleadings before the next date of hearing. List the matter on 21.5.2013 for final disposal.” Learned Counsel for the petitioner submits that the issues raised in the writ petition are similar to those of Misc. Bench No. 3542 of 2013 and the petitioner is entitled for the same interim relief. List this writ petition on 11.11.2013. Rejoinder-affidavit may be filed by the date fixed. There shall be interim order in the present writ petition in terms of the order dated 29.4.2013 passed in Misc. Bench No. 3542 of 2013, as quoted above.” 3. Sri Manu Khare, learned counsel for the petitioner has submitted that this Court had passed interim orders in the instant writ petitions, as well as in large number of other connected matters, upon similar terms. Sri Khare has invited our attention to the order dated 31st of May, 2013, passed by the Lucknow Bench of this Court in Writ Petition No. (M/B) 4424 of 2013, which is reproduced : “We have heard learned counsel for the parties and perused the pleadings of writ petition. With the consent of learned counsel for parties, we dispose of the writ petition finally in terms of orders dated 29.4.2013 and 22.5.2013 passed in Writ Petition No. 3542 (MB) of 2013. The order dated 29.4.2013, on reproduction, reads as : “We have heard learned counsel for parties and perused the pleadings of writ petition. Learned Senior Counsel for petitioner, Shri J.N.Mathur, submitted that this writ petition has been filed being aggrieved from the part of order dated 30.11.2012 of the State Level Environment Impact Assessment Authority, U.P. Lucknow, in so far as it prohibits the use of machine completely in the mining work and which only provides that the mining work will be open-cast and exclusively manual and no mechanical work or drilling/blasting shall be involved at any stage. Shri Mathur, referred a judgment of a Coordinate Bench headed by the then Hon’ble Chief Justice, which is in Mohd. Kausar Jah v. Union of India and others, 2011 (5) ADJ 125 (DB) (LB). Shri Mathur, in particular, took us to Para-20 of the said judgment, which contains the inspection report on mining of minor minerals towards the compliance of direction passed by this Court dated 6.3.2009 in Writ Petition No. 1580 (MB) of 2009 [Noor Mohammad v. State of U.P. and others]. Shri Mathur, in particular, took us to Para-20 of the said judgment, which contains the inspection report on mining of minor minerals towards the compliance of direction passed by this Court dated 6.3.2009 in Writ Petition No. 1580 (MB) of 2009 [Noor Mohammad v. State of U.P. and others]. According to Shri Mathur, recommendation No. 9 of the inspection report is relevant for the purpose of considering the interim relief. The said recommendation on reproduction reads as: “9. Deployment of heavy machinery for extraction, loading and transportation of mineral should not be allowed without the prior permission of DGMS/DM.” Shri Mathur also took us to Government Order No. J-11015/106/2010-IA.II (M), dated 9.4.2012, issued by the Ministry of Environment and Forests, which provides for semi-mechanised mining. Learned counsel for State as well as Union of India do not have any cogent ground to counter the submission of learned senior counsel. Thus, we stay the operation of specific condition No. 1 of the certificate dated 30.11.2012, as contained in Annexure 1, relating to the environmental clearance issued by the State Level Environment Impact Assessment Authority, U.P. Lucknow. Consequently, the petitioners would be entitled to go for semi-mechanised mining, subject to completing the official formalities, if any, required in the matter in terms of recommendation No. 9 as noticed hereinabove. Besides, this interim order is being passed on the facts of this case, for, learned Senior Counsel submits that except the formalities required to be completed for the Semi mechanised mining, the petitioners have completed all other requirements in this matter. The parties shall complete the pleadings before the next date of hearing. List the matter on 21.5.2013 for final disposal.” The subsequent clarificatory order dated 22.5.2013, reads as : We have heard learned counsel for parties and perused the pleadings of writ petition. Smt. Bulbul Godiyal, learned Additional Advocate General, on instructions states that there was mistake in mentioning JCB machine vide condition No. 1 in the order dated 16.5.2013. The same will be corrected with grant of permission to go for mechanized mining in terms of the order of the Court. We also clarify that all the machines/equipments which can be used for mining in terms of the guidelines issued by the Ministry of Environment and Forest for the semi-mechanized mining shall be permitted in this case also. The same will be corrected with grant of permission to go for mechanized mining in terms of the order of the Court. We also clarify that all the machines/equipments which can be used for mining in terms of the guidelines issued by the Ministry of Environment and Forest for the semi-mechanized mining shall be permitted in this case also. In respect of similar cases, if any, needless to say that the grant of such benefits shall depend upon the facts and circumstances of each individual case. In view of the aforesaid statement of learned Additional Advocate General and the position clarified, the writ petition stands disposed of. Thus, writ petition stands disposed of with the relief(s) in terms of the aforesaid order.” 4. It is stated at the bar that the aforesaid order dated 31st of May, 2013, as well as similar orders passed by this Court have been challenged by filing SLP before the Apex Court and notices have been issued in the matter on 11th of August, 2014 in Special Leave to Appeal (C) No. 21522-21529 of 2014. However, no interim order has been passed. It is, therefore, submitted that since the orders passed in identical circumstances by this Court has not been stayed by the Hon’ble Apex Court in the pending SLP, as such, this Court may dispose of the instant writ petitions upon identical terms. 5. Learned Standing Counsel appearing for the respondents-State, however, has raised an objection with regard to the maintainability of the writ petition itself on the ground that for the relief claimed in the present writ petition, the petitioner has an statutory alternative remedy of approaching the National Green Tribunal and therefore, the present writ petition is not liable to be entertained. The attention of the Court has been invited to Section 16(i) of the National Green Tribunal Act, 2010, which reads as under : “16. Tribunal to have appellate jurisdiction.—Any person aggrieved by, (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 (29 of 1986).” 6. Tribunal to have appellate jurisdiction.—Any person aggrieved by, (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 (29 of 1986).” 6. The argument of the learned Standing Counsel is that the challenge in the present writ petition since is to condition No. 1 contained in the environmental clearance certificate issued by the State Level Environment Impact Assessment Authority, the same could be assailed before the National Green Tribunal and, therefore, the present writ petition be not entertained. 7. Sri Manu Khare in reply to the objection regarding maintainability of the writ petitions submits that existence of statutory alternative remedy is not an absolute bar in entertaining the writ petitions, once this Court has entertained other similar writ petitions and decided the matters on merits and, therefore, it would not be appropriate for this Court to relegate the petitioner to alternative remedy, at this stage. Reliance has been placed upon an interim order of the Apex Court dated 10.3.2014 in Special Leave to Appeal (C) No. 27327 of 2013, which reads as under : “In our considered opinion, the directions in paragraphs 40 and 41 of the judgment quoted hereunder and order dated 9th August, 2012 of Writ Petition No. 50 of 1998 titled as Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India and others, (2012) 8 SCC 326 , that all matters instituted after coming into force of the National Green Tribunal Act, 2010 and which are covered under the said Act and/or under which the said Act shall stand transferred and can be instituted only before National Green Tribunal requires reconsideration by this Court. These directions are quoted hereinbelow: 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 1 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 the NGT. Such approach may be necessary to avoid likelihood of conflict of orders between the High Courts and the 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 the NGT in its discretion, as it will be in the fitness of administration of justice. Hence hearing on the question of reconsideration of the directions in paragraphs 40 and 41 of the aforesaid judgment and order will take place on 21st April, 2014. Till we pass final orders on such reconsideration the direction for transferring the pending matters before the High Court to the Green Tribunal in paragraphs 40 and 41 will not be given effect to. A copy of this order be circulated to all High Courts in the country.” Sri Khare, however, has not disputed that the aforesaid SLP was withdrawn on 11.8.2014, and the question of law has been left open. The order dated 11.8.2014 is reproduced : “In view of the factual position indicated in paragraphs 5 and 6 of the application, we permit the applicant to withdraw SLP (C) No. 27327 of 2013. The petitioner shall be at liberty to make a prayer for expeditious disposal of Writ Petition No. 369 of 2011 before the Bombay High Court. I.A. No. 2 of 2014 is allowed in the manner indicated above. The petitioner shall be at liberty to make a prayer for expeditious disposal of Writ Petition No. 369 of 2011 before the Bombay High Court. I.A. No. 2 of 2014 is allowed in the manner indicated above. The question of law is left open.” Sri Khare, therefore, submits that the question of law with regard to transfer of matters from the High Courts to National Green Tribunal is still to be authoritatively pronounced and, therefore, the present writ petition having been entertained by this Court is not liable to be dismissed on the ground of remedy available to the petitioner of filing appeal before the National Green Tribunal. 8. We have examined the respective contentions of learned counsel for the parties and have perused the records. 9. It is true that the Lucknow Bench of this Court had disposed of writ petition of similar nature, relying upon order dated 22.5.2013 in Writ Petition No. (M/B) 3542 of 2013. The said writ petition was decided on the basis of a concession given by learned Additional Advocate General, on the basis of instructions received. The Court also took care of observing that the issue of grant of similar relief in other cases would depend upon the facts and circumstances of each case. The subsequent order dated 31st of May, 2013 merely follows the order dated 22.5.2013, referred to above. 10. From the perusal of records, we find that the orders, which have been relied upon by the learned counsel for the petitioner, have been passed on the basis of a concession given by learned Additional Advocate General, which has been specifically referred to in the order dated 22.5.2013 passed in Misc. Bench No. 3542 of 2013. We find that there is no adjudication on merits by this Court with regard to the legality and propriety of the condition imposed by the State Level Environment Impact Assessment Authority while issuing the environmental clearance certificate, which provided that the mining work will be open-cast and exclusively manual and no mechanical work or drilling/blasting should be involved at any stage. Even in the present Bunch of writ petitions, no counter-affidavit has been filed so far and, therefore, adjudication of the dispute on merits cannot take place. 11. We may observe that matters where questions relating to protection of environment are involved, substantial public interest is at stake. Even in the present Bunch of writ petitions, no counter-affidavit has been filed so far and, therefore, adjudication of the dispute on merits cannot take place. 11. We may observe that matters where questions relating to protection of environment are involved, substantial public interest is at stake. The mere fact that in one matter a concession has been given by the learned counsel for the State would not be sufficient for this Court to dispose of all other matters on identical terms, without actually examining the matter with due care and circumspection. Admittedly no concession has been made by the State counsel in the present matters. We have also considered the submissions advanced by learned counsel for the petitioner that the writ petition having been entertained by this Court may not be relegated to the remedy available of approaching the National Green Tribunal in view of the orders passed by the Hon’ble Supreme Court dated 10th of March, 2014 in SLP (C) No. 27327 of 2013. We find that the observations made in Paras 40 and 41 of the judgment of the Apex Court in Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India and others (supra) had been stayed but subsequently, on 11th of August, 2013, the SLP No. 27327 of 2013 itself has been withdrawn, although the question of law has been left open. The observations made in Paras 40 and 41 of the judgment delivered in Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India and others, continues to hold the field. Para 40 of the judgment, which has already been extracted above, is categorical inasmuch as a direction has been issued 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’’. The observation of the Apex Court contained in Para 40 of the aforesaid judgment is binding upon this Court and, therefore, it would not be appropriate for this Court to keep the matters pending awaiting a response from the State. The observation of the Apex Court contained in Para 40 of the aforesaid judgment is binding upon this Court and, therefore, it would not be appropriate for this Court to keep the matters pending awaiting a response from the State. It is apparent from the records that the condition contained in the environmental clearance certificate is subject to appeal under Section 16 (i) of the National Green Tribunal Act, 2010, and the matter is otherwise covered in Schedule-I to the Act of 2010. 12. In view of the discussions and observations made above, it would be appropriate that the record of the present Writ Petition (C) No. 55900 of 2013 alongwith connected matters be transmitted to the National Green Tribunal for adjudicating the legality and propriety of condition No. 1 contained in the environmental clearance certificate, which is under challenge. 13. The registry of this Court is directed to transmit the records/papers of the present writ petition alongwith the records of connected Writ Petition (C) Nos. 2683 of 2014, 12534 of 2014, 12535 of 2014, 15443 of 2014, 66793 of 2013, 69140 of 2013 and 70157 of 2013 to the National Green Tribunal forthwith, for its adjudication by the Tribunal, in accordance with law. —————