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BEFORE THE NATIONAL GREEN TRIBUNAL

NEW DELHI,

(PRINCIPAL BENCH)

MISC. APPLICATION NO.27 OF 2012

IN

APPEAL No. 04 OF 2012

1. Nirma Limited

Nirma House

Ashram Road

Ahmedabad

Appellant/Petitioner

Versus

1. Ministry of Environment & Forests

Government of India

Paryavaran Bhavan, CGO Complex

Lodhi Road, New Delhi-110003.

2. Revenue Department

(Through Secretary)

State of Gujarat

Sachivalaya

Gandhinagar

Gujarat.

3. Gujarat Pollution Control Board

Through its Member Secretary

Sector 10-A, Parayavaran Bhawan

Opp. Bij Nigam

Gandhinagar-382010.

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4. Shree Mahuva Bandhara Khetiwadi

Pariyavaran Bachav Samitee

Through its Secretary

Bharat Shiyal S/o Naran Shiyal

R/o. Dhgheri, at Post Madhiya

Tal. Mahuva, District Bhavnagar

Gujarat.

Respondents

Counsel for Appellant:

Shri Dushyant Dave, Sr. Advocate alongwith

Shri Prashanto Chandra Sen, Advocate and

Shri Ramesh Singh, Advocate

Counsel for Respondents:

Shri Raj Panjwani, Sr. Advocate alongwith

Shri Abhimanue Shrestha for R-4

JUDGMENT

PRESENT:

Justice A.S. Naidu (Acting Chairperson)

Dr. G.K. Pandey (Expert Member)

.................................................................................................... Dated 1st May, 2012

………………………………………………………………………...

JUDGMENT BY THE BENCH

Order dated 1st December, 2011 passed by the Ministry of

Environment and Forests (MoEF) revoking the

Environmental Clearance (EC) granted to Nirma Limited for

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the proposed Cement Plant (1.91 MTPA; 1.50 Clinker),

Coke Oven Plant (1.5 MTPA) and Captive Power Plant (50

MW) at Village Padhiyarka of Taluka Mahuva, District

Bhavnagar, in the State of Gujarat, in exercise of the power

conferred under Section 5 of the Environment (Protection

Act) 1986; is assailed in Appeal No.4/2012 by the Project

Proponent i.e. Nirma Limited.

2. Admittedly, Nirma Ltd., approached the MoEF and filed

an Application for granting EC for the aforesaid proposed

Cement, Coke Oven and Captive Power Plants at Village

Padhiyarka. On coming to know about the said fact several

representations were filed by persons aggrieved / interested

in protection of environment, as well as residents of villages

situated in the vicinity objecting grant of EC. Several acts of

omissions and commissions as well as misrepresentations

and suppression of facts were also projected before the

Authorities by the objectors. It further appears that the

villagers and farmers constituted an Associate with the

name of Shri Mahuva Bandhara Khetiwari Paryavaran

Bachav Samitee and got it registered as a Society under

the Bombay Public Trust. The said Association raised

several allegations before the Competent Authorities with

regard to non consideration as well as non fulfilment of

mandatory environment disorders and impacts which may

be caused by the project. However, the MoEF after

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consideration of all the objections granted EC to the project

by order dated 11th December, 2008

It appears that the said Association knocked the portals of

Hon’ble High Court of Gujarat inter-alia challenging the EC

granted in favour of M/s Nirma Ltd., by filing a writ petition

which was registered as Special Civil No.3477 of the 2009. It

appears that Hon’ble Gujarat High Court dismissed the said

writ application on 26th April 2010. The order of dismissal was

assailed before the Hon’ble Supreme Court in Special Leave

Petition No. 15016 of 2010. Number of other SLPs were also

filed by other persons interested, assailing the EC granted to

the Projects in question being SLP (Civil) No.14698 of 2010,

SLP (Civil) No.32414 of 2010, and SLP (Civil) No.32615 of

2010.

3. All the SLPs were heard together by the Hon’ble

Supreme Court. In course of hearing on 18th March, 2011,

learned solicitor general submitted that the Ministry would

like to revisit the Environment clearance in respect of the

project undertaken by Nirma Ltd., particularly in view of the

conflicting stands taken in the affidavits from time to time.

After hearing Learned Senior Counsel for the parties, the

Hon’ble Supreme Court directed that the Expert Appraisal

Committee (EAC) of the MoEF should call for the reports of

an Expert Body consisting of five independent reputed

scientists, who will visit the site and submit the report on the

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four questions framed by the Hon’ble Apex Court. The

Hon’ble Supreme Court further directed that the Expert

Body will give hearing to the Project Proponent, Nirma Ltd.,

as well as to all objectors and submit its report. The

Hon’ble Supreme Court also made further observations with

regard to the formalities to be adopted and directed the

Competent Authority to submit an affidavit as to why the

ratio of the judgment of the Supreme Court in the case of

LAFARGE was not being followed by the MoEF.

4. All the cases finally came up for hearing on and were

disposed of by the Hon’ble Supreme Court by order dated

9th December, 2011 observing as follows:-

“Upon hearing counsel the Court made the

following

Order

Mr. D.A. Dave, learned senior counsel appearing

for NIRMA, states that, on 1st December, 2011, the

Competent Authority under Environment

(Protection) Act, 1986, has passed an order against

which NIRMA wants to file an appeal before the

National Green Tribunal. They seek four weeks’

time therefor, which is granted. The National

Green Tribunal will decide the matter as

expeditiously as possible in accordance with law,

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The special leave petitions are, accordingly

disposed of.”

5. Pursuant to the leave obtained from the Hon’ble

Supreme Court, supra, Nirma Ltd., has filed the present

appeal assailing the decision taken by the MoEF cancelling

the EC granted to the project, impleading the MoEF,

Revenue Department and Gujarat Pollution Control Board

only Respondents.

Before commencement of the hearing, the present

application was filed by “Shri Mahua Bandhara Khetiwadi

Pariyavaran Bachav Samittee” praying to be impleaded as a

respondent in the appeal. It is stated that severe damage is

likely to be caused to the environment and the same can

only be prevented if the Applicant is permitted to put forth the

true facts before this Tribunal. It is further, alleged that

despite of the fact that the Member’s of the Association are

likely to be affected by the proposed Cement Plant and are

vitally interested in the lis, the Appeal has been filed without

impleading them as one of the Respondent’s. Further,

according to the Applicants the members of the Association

have taken part in the movement and raised protest from the

day one when the project was proposed to be installed and

as such would be able to assist this Tribunal, both on the

question of facts and law.

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6. It is further, averred that not giving an opportunity of

hearing to the Applicant would cause immense prejudice

and would breach their fundamental rights to enjoy fresh

water and clean environment. Further it is submitted that

the rights granted to the citizens under Article 21 of the

Constitution of India shall be infringed if the Applicants are

not impleaded as party respondent and granted opportunity

to put forth their grievances.

7. A detailed reply has been filed by Nirma Ltd.,

repudiating most of the facts stated in the potions for

impletion. It is stated that applicant is neither a necessary

nor a proper party to the present proceedings. In as much

as the Appeal relates only to the question of revocation of

the environmental clearance granted earlier in favour of the

Appellant. For adjudicating such an issue, there is no

necessity to give an opportunity of hearing to the Applicant,

in much as the main architect of the order i.e. MoEF is a

party to the Appeal and is capable of protecting the

impugned order passed by it.

It is further averred that the Applicant Association was not

involved in the exercise of revocation of EC undertaken by

Respondent No.1, they also took no steps to implead

themselves in the said proceedings and thus, have no locus

standi to be impleaded in the present Appeal. Further, it is

stated that the Applicant neither took part in the public

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hearing nor filed any representation before the MoEF and

as such is not a necessary party and the application should

be rejected in limini.

8. Mr. Pandjwani Learned Senior Consul appearing for the

Applicant forcefully submitted that the applicant being a

registered Association is a body corporate. The members

of the Association took active part in the process of EC with

regard to the aforesaid projects, from the very inception.

Not only they have filed objections but also pursued the

issue. They are not strangers to the litigations on the other

hand they had taken part at all stages, of the decision

making process.

9. Relying upon the Rio declaration on Environment and

Development, Mr. Panjwani submitted that environmental

issues are best handled with the participation of all

concerned citizens, at the relevant level. At the national

level, each individual shall have appropriate access to

information concerning the environment that is held by

public authorities including information on hazardous

materials and activities in their communities and the

opportunity to participate in a decision making process. It is

submitted that this Tribunal having been constituted with the

aims and objectives of effective and expeditious disposal of

cases relating to environment’s protection and conservation

of forests and to deal with any legal right relating to

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environments and is also vested with the power to handle

the multi-dimensional issues involved in environmental

cases, no barrier should be created to keep a group of

justice seekers, away from the hearing of a dispute

involving environment.

10. Mr. Dave, learned Senior Advocate appearing for the

Appellant on the other hand, submitted that the applicant is

not a registered body, and has absolutely no right of

audience with regard to revocation of the EC granted by the

MoEF earlier. The present controversy is limited only with

regard the revocation of the order which has been passed

by the MoEF and thus the petitioners association does not

have any right to take part in the proceedings. Mr Dave

relying upon Section 16 of the NGT Act, further submitted

that this appeal being a Statutory one, only those persons

who were parties before the authorities whose orders are

assailed have a right to be impleaded and heard. The

present Applicant being not a party before the Competent

Authority nor it was involved in the exercise of revocation of

environmental clearance under taken by Respondent No.1

MoEF, is not a necessary party. Mr. Dave further

submitted that a person is the sole architect of his case and

he has a right to choose his own adversary against whom

he seeks relief. In the case in hand as no relief is sought

against the applicant, he is neither a necessary party nor a

proper party.

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11. In support of his submission Mr. Dave relied upon a

decision in a case of Northern Plastics Ltd. Vs Hindustan

Photo Films Manufacturing Company Ltd. and Others

(1997) 4 SCC 452. In the said decision, the Hon’ble

Supreme Court has held as follows:

“ At the outset it must be kept in view that the appeal is a

creature of statute. The right to appeal has to be

exercised by persons permitted by the Statute to prefer

appeals subject to the conditions regarding the filing of

such appeals. We may in this connection usefully refer to

a decision of four learned Judges of this Court in the case

of Anant Mills Co. Ltd., Vs State of Gujarat. In the that

case Khanna, J., speaking for the Court had to consider

the question whether the provision of Statutory appeal as

per Section 406(2)(e) of the Bombay Provincial Municipal

Corporation Act, 1949 which required the appellant to

deposit the disputed amount of tax before the appeal

could be entertained could be said to be in any way

violative of Article 14 of the Constitution of India.

Repelling the aforesaid challenge to the vires of the said

provision the following pertinent observations were made

in para 40 of the Report: (SCC pp. 202-03 para-40)

“…. The right of appeal is the creature of a Statute.

Without a Statutory provision creating such a right the

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person aggrieved is not entitled to file an appeal. We fail

to understand as to why the Legislature while granting the

right of appeal cannot impose conditions for the exercise

of such right. In the absence of any special reason there

appears to be no legal or constitutional impediment to the

imposition of such conditions. It is permissible, for

example, to prescribe a condition in criminal cases that

unless a convicted person is released on bail, he must

surrender to custody before his appeal against the

sentence of imprisonment would be entertained.

Likewise, it is permissible to enact a law that no appeal

shall lie against an order relating to an assessment of tax

unless the tax had been paid. Such a provision was on

the Statute-book in Section 30 of the Indian Income Tax

Act, 1922. The proviso to that section provided that ‘ ...

no appeal shall lie against an order under Sub-section (1)

of Section 46 unless the tax had been paid.’ Such

conditions merely regulate the exercise of the right of

appeal so that the same is not abused by a recalcitrant

party and there is no difficulty in the enforcement of the

order appealed against in case the appeal is ultimately

dismissed. It is open to the Legislature to impose an

accompanying liability upon a party upon whom legal right

is conferred or to prescribe conditions for the exercise of

the right. Any requirement for discharge of that liability or

the fulfilment of that condition in case the party concerned

seeks to avail of the said right is a valid piece of

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legislation, and we can discern no contravention of Article

14 in it.”

12. The facts of the case of Northern Plastics Ltd., supra is

quite different, from the facts of the case in hand. Admittedly

the Hon’ble Supreme Court, in the said case, was dealing with

the locus standi and a right of a person to prefer an appeal. In

the present case, however, the Applicant want to be impleaded

as a Respondent and prayed to assist the Court in arriving at

a just decision. Section 16 of the NGT Act stipulates that the

person aggrieved by an order passed under any of the Acts set

forth as (a to j) thereof can prefer an Appeal. Accordingly,

Nirma Ltd., has assailed the order passed by the MoEF under

Environmental (Protection) Act, 1986. It is needless be said

that as the Applicant is not aggrieved by the order cancelling

the EC it has no right to prefer an Appeal but then being a

party to the entire proceeding culminating in the order

cancelling the EC, it has a right to file an application to be

impleaded as an Respondent, and pray for granting

opportunity of hearing.

13. The dispute and controversy arising out of the seven

acts enumerated in Schedule 1 of the NGT Act, 2010 are

not adversary in nature. In other words in such type of

litigation neither there is a plaintiff nor a defendant. The

controversy is more in the nature of litigations involving

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public interest. The procedure adopted for considering an

application filed for granting EC for any proposed project,

has to be dealt with in consonance with the provisions of

Environment Impact Assessment (EIA) Notification, 2006

coupled with the provisions of Environment (Protection) Act,

1986 and rules framed thereunder. The provisions of the

said Act Rules and Notifications grant extensive access to

the public in general to take part and participate in the

decision making process. Perusal of the report submitted by

the Expert Body constituted by the MoEF in accordance

with the direction of the Hon’ble Supreme Court, also

reveals that the applicant and many others took active part

and raised objections to the proposal of granting EC to the

project. The orders passed by the Hon’ble Supreme Court

also reveal that the Applicant was immensely interested in

the subject matter. It has not only raised objections but also

moved the Gujarat High Court and thereafter Hon’ble

Supreme Court, for redressal of its grievances. Thus it is

clear that the members of the applicants Associations are

not strangers to the ‘lis’ on the other hand they have taken

part in all stages of the decision making process.

14. It is no more resintegra that where the Court finds that

addition of a new party is absolutely necessary to enable it

to adjudicate affectively and completely the mater in

controversy, it will permit addition of the party. In the case

in hand, as would be evident from the discussions made

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above, the applicant Association and its members all along

took keen interest in the controversy in issue and they took

active part, by filing objections and otherwise. They had

also approached the Gujarat High Court and Hon’ble

Supreme Court in pursuit of their grievances. That apart, by

order dated 18th March, 2011, the Hon’ble Supreme Court

specifically directed the Expert Body to give hearing to

Nirma Ltd., as well as to all objectors. It is needless to say

that the applicant and or its members were among the

objectors. Thus, they have vested interest in the subject

matter of the Appeal and unless an opportunity is granted to

them, to put forth their grievance, great prejudice shall be

caused, which cannot be mitigated otherwise. We

therefore, allow the application for impletion of party and

direct that the applicant be added as a Respondent No. 5 to

the Appeal.

15. The appellant is directed to serve a copy of the

memorandum of appeal alognwith other documents on the

applicant within a period of two weeks hence. The newly

added respondent shall file its reply within a period for three

weeks from the date of the service of the Appeal

memorandum. The mater being very urgent we direct the

same be listed for hearing on 30th May, 2012. It is made clear

that we have not examined the merits of the case and the

observations made above are only primafaci passing remarks

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and shall not be binding and the Appeal shall be disposed of

strictly in accordance with law.

16. Miscellaneous Application is accordingly allowed.

Dr. G.K. Pandey Justice A.S. Naidu Expert Member Acting Chairperson Durga Malhotra 1

st May, 2012