RAZA AHMAD versus STATE OF CHHATTISGARH & ORS. on 7 March 2022

1. This appeal under Section 22 of the National Green TribunalAct 2010[1] arises from a judgment dated 2 August 2013 of the NationalGGreen Tribunal[2], at its Central Zone Bench in Bhopal.

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2. In April 2007, the seventh respondent, Steel Authority of India[3],and Jayprakash Associates entered into a Memorandum of Association toestablish a cement grinding unit of 2.2 MTPA capacity at Bhilai,Chhattisgarh. In pursuance of this goal, they set up the tenth respondent,Bhilai Jaypee Cement Limited. A parcel of land admeasuring 34.59 acresbelonging to SAIL, falling in the villages of Hingna and Maroda at Bhilai inDistrict Durg, was leased out to the tenth respondent for thirty years,based on a long-term lease dated 16 June 2007. The land use of this parcelof land had been designated as “green belt” in the 1991 DevelopmentPlan of Bhilai. On the tenth respondent’s application, an EnvironmentalClearance[4] was granted to their project of the cement grinding unit on 1May 2008[5] by the second respondent, the then Ministry of Environmentand Forests. It was subsequently published in newspapers on 8 May 2008.

3. It is alleged by the appellant that since the EC was incorrectlyissued, the tenth respondent’s constructions on the parcel of land wereillegal. In this regard, several notices were issued to them by the fifthrespondent, Director, Town and Country Planning, Bhilai and the sixthrespondent, Commissioner, Municipal Corporation of Bhilai to revert theland to its original condition or face demolition of the structure. Thetenth respondent then applied for the modification of the land use of theparcel of land admeasuring 34.59 acres.

4. The first respondent, the State of Chhattisgarh, considered theircase under Section 23-A of Chhattisgarh Nagar Tatha Gram NiveshAdhiniyam 1973. On 22 May 2010, the State government made a proposalto change the land use from “green belt” to “industrial purpose” on thebasis that the setting up of the cement grinding unit by the tenth respondentconstituted an “urgent public purpose”. Between 13 July 2010 and 15July 2010, the State government published circulars in two eveningnewspapers highlighting the proposed modification in land use and invitingobjections/suggestions from the general public. The appellant allegedlyraised objections against the proposed modification. However, relyingon the EC granted on 1 May 2008, the State government issued anotification[6] dated 3 February 2011 modifying the land use of the parcelof land from “green belt” to “industrial purpose”. The notification waspublished in the Chhattisgarh Gazette on 18 February 2011.

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5 Letter No J-1101111000112007-IA-ll(I)

6 Notification No F/7-24/32/2010

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A5. The appellant then instituted a public interest petition[7] underArticle 226 of the Constitution before the High Court of Chhattisgarh on8 September 2011. The reliefs which were sought by the appellant were:

(i) Quashing of the notification dated 3 February 2011 of theState government modifying the land use of the parcels ofBland designated in the 1991 Development Plan of Bhilai asa “green belt” to “industrial purpose”;

(ii) Quashing of the EC issued on 1 May 2008 to the tenthrespondent for its cement grinding unit (the ground ofchallenge being that the project had been erroneouslyCcategorized in Category B2 instead of Category A, andhence the mandatory procedures of conducting anEnvironmental Impact Study and public hearing/consultationwere not followed); and

(iii) The restoration of 34.59 acres of land designated as a “greenbelt”, which was leased out to the tenth respondent, to itsDoriginal condition prior to the construction which was carriedout on the land.

6. An objection was raised in regard to the maintainability of thepetition before the High Court by the tenth respondent.

7. By an order dated 28 January 2013, the High Court transferredEthe petition to the NGT in view of the decision of this Court in BhopalGas Peedith Mahila Udyog Sangathan v Union of India[8]. The NGT,by its impugned judgment dated 2 August 2013, dismissed the appeal[9] onthe ground that:

(i) The appeal is barred by limitation; and F

(ii) The NGT is constituted by the NGT Act, and does not havejurisdiction to entertain a challenge to the notification dated 3February 2011 of the State government altering the land use.

8. We have heard Dr Surender Singh Hooda, counsel appearingon behalf of the appellant, Mr Yashraj Singh Deora, counsel appearingGon behalf of the seventh respondent and Mr Sumeer Sodhi, counselappearing on behalf of the State of Chhattisgarh.

7 Writ Petition (PIL) No 5467 of 2011

8 (2012) 8 SCC 326H9 Appeal No 1 of 2013

9. The NGT Act came into force on 18 October 2010, after it waspublished in the Gazette of India in pursuance of the provisions of Section1(2). The NGT has original jurisdiction, conferred by Section 14 andappellate jurisdiction, which is conferred by Section 16. Further, Section15 empowers the NGT to grant relief to remedy environmental damage,including compensation and restitution.

10. Section 14 empowers the NGT to exercise jurisdiction overall civil cases where a substantial question relating to the environment(including enforcement of any legal right relating to the environment) isinvolved and such a question arises out of the implementation of theenactments specified in Schedule I. Sub-Section (3) of Section 14provides that no application for adjudication of a dispute under the provisionshall be entertained unless it is made within a period of six months fromthe date on which the cause of action for such dispute first arose. Underthe proviso, the NGT is empowered to entertain an appeal beyond theprescribed period for sufficient cause, subject to a limit of sixty days.

11. Section 16, which confers appellate jurisdiction on the NGT,contemplates in Clause (h) that an appeal can lie against an order made,on or after the commencement of the NGT Act, granting an EC. Suchan appeal has to be filed within thirty days from the date of thecommunication of the order, decision, direction or determination. TheNGT is entrusted with the power to condone a delay of a period notexceeding sixty days, for sufficient cause.

12. In the present case, the relevant dates which would have abearing on the subject matter of the controversy are as follows:

(i) 1 May 2008 – EC was granted to the tenth respondent’sproject (subsequently published in the newspapers on 8 May2008); (ii)18 February 2011 – publication of the notification dated 3February 2011 by the State government proposing amodification of land use for 34.59 acres of land from “greenbelt” to “industrial purpose”; (iii)8 September 2011 – institution of the writ petition beforethe High Court by the appellant; and (iv)28 January 2013 – transfer of the proceedings to the NGTby the High Court.

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A13. Section 38(1) of the NGT Act stipulates that the NationalEnvironment Tribunal Act 1995 and the National Environment AppellateAuthority Act 1997[10] would stand repealed. Section 38(2) protectsanything done or any action taken under the repealed enactments. Section38(3) dissolved the National Environment Appellate Authority establishedunder the above 1997 Act. Section 38(5), however, makes a provisionBfor the transfer of all cases pending before the National EnvironmentAppellate Authority to the NGT.

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14. In the present case, the EC was issued on 1 May 2008, priorto the enforcement of the NGT Act. No steps were taken by the appellantto pursue a challenge to the EC under the provisions of the 1997 Act. NoCchallenge was pending on the date of the enforcement of the NGT Actand hence, there was no question of transfer of any proceedings to theNGT. The challenge before the High Court to the EC was raised on 8September 2011, well beyond three years of the date of the publicationof the EC in the newspapers on 8 May 2008. Consequently, the challengeDto the EC was barred by limitation. As a matter of fact, Dr SurenderSingh Hooda has fairly accepted the said position.

15. However, the submission which has been urged on behalf ofthe appellant is that besides challenging the EC, the appellant had alsoplaced in issue the validity of the notification of the State governmentEdated 3 February 2011 (published on 18 February 2011), by which theuse of the land was sought to be altered to “industrial purpose”. TheNGT came to the conclusion that this part of the notification was beyondits jurisdiction since the Town and Country Planning Act 1973 of theState of Chhattisgarh is not one of the notified statutes in relation towhich it has jurisdiction. To challenge this finding, it has been urged onFbehalf of the appellant that the appellant, for the purpose of the saidrelief, does not challenge the EC, but asserts that the conditions of theEC would stand violated by the change of land use. In this context,reliance has been placed on the following conditions of the EC:

“ix.As proposed, green belt shall be developed in 4.62 ha (33G%) out of total 14 ha area to reduce impact of fugitiveemissions. Central Pollution Control Board guidelines shallbe followed in planning and developing green belt andselection of species etc.

x.Other necessary statutory clearances from the concernedDepartments including ‘No Objection Certificate’ from theChhattisgarh Environment Conservation Board (CECB)shall be obtained prior to commencement of constructionand/or operation.”

16. The submission is that the EC has been issued in pursuance ofthe EIA notification, which in turn traces its source of power to theEnvironment (Protection) Act 1986[11]. The 1986 Act is a statute which islisted at Entry 5 of Schedule I of the NGT Act. Thus, it has been submittedthat any breach of the EC by a proposed change of land use can bemade the foundation for invoking the remedy before the NGT. Moreover,it has been urged that it was open to the appellant to invoke the jurisdictionunder Section 14 of the NGT Act for contending that the change of landuse notification dated 18 February 2011 would result in a violation of theEC conditions noted above and this could be remedied before the NGTin the exercise of its original jurisdiction under Section 14. It has beenurged that Parliament has given overriding force to the NGT Act bySection 33.

17. The notification in question by which the change of land usewas proposed was published on 18 February 2011. The writ petitionbefore the High Court was instituted on 8 September 2011. In terms ofSection 14 of the NGT Act, any recourse to the original jurisdiction ofthe NGT has to be taken within a period of six months from the date onwhich the cause of action of such dispute first arose. The NGT has thepower to condone a delay of a further period not exceeding sixty days.Between 8 September 2011, when the writ petition was instituted, and28 January 2013, when the High Court transferred the proceedings, theappellant was agitating the issue before the High Court. In the eventthat the NGT considers that the appellant has shown sufficient causewithin the meaning of the proviso to sub-Section (3) of Section 14, theinstitution of the proceedings on 8 September 2011 would fall within theperiod of limitation as specified in sub-Section (3) of Section 14 readwith its proviso.

18. Mr Sumeer Sodhi, counsel appearing on behalf of the State ofChhattisgarh, submitted that, in the present case, the appellant had invokedthe appellate jurisdiction of the NGT under Section 16, which is why theproceedings were not numbered as an OA, but as an appeal.

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A19. What seems to have transpired is that the appellant hadinstituted a writ petition in the High Court under Article 226 of theConstitution, which was transferred to the NGT and upon transfer, theproceedings were numbered as an appeal. The reliefs which wereclaimed, as already noted earlier, involved a challenge to the EC as wellas a challenge to the notification dated 3 February 2011, by which theBuse of the land was proposed to be changed to “industrial purpose”. Thechallenge to the EC, as we have already noted above, is barred bylimitation. However, the challenge to the change of land use, on theground that such a change would violate a condition of the EC, issomething which in the submission of the appellant would fall within theCjurisdiction of the NGT provided the NGT decides to exercise its discretionto condone the delay within the meaning of Section 14(3) read with itsproviso. Whether the delay should be condoned is entirely a matter forthe NGT to decide.

20. We accordingly issue the following directions:

D(i)The challenge to the EC dated 1 May 2008 is barred bylimitation;

(ii) The proceedings are remitted back to the NGT fordetermining as to whether the challenge to the proposedmodification of the land use to “industrial purpose” throughthe notification dated 3 February 2011 can be entertainedEwithin the extended period as prescribed by the proviso toSection 14(3) of the NGT Act;

(iii) The NGT, in considering the aspect which is referred to in(ii) above, shall be at liberty to determine whether sufficientcause has been shown by the appellant for condoning theFdelay; and

(iv) We clarify that we have not expressed any opinion on themerits of the rival contentions. Should the delay be condoned,the NGT would be at liberty to take a decision on all theissues and contentions raised by the rival parties.G21. The appeal shall stand partly allowed in the above terms withno orders as to costs.

22. Pending application(s), if any, stand disposed of.

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Devika Gujral