Tr.P.(C)/2/2014 of Karma Thinlay Lama & Ors. Vs State Of Sikkim and Ors on 22 August 2014

IN THE HIGH COURT OF SIKKIM

CIVIL JURISDICTION

TR. P. (C) No. 02/2014

Karma Thinlay Lama & Ors. vs. State of Sikkim & Ors.

BEFORE

HON’BLE THE CHIEF JUSTICE MR. JUSTICE N.K. JAIN HON’BLE MR. JUSTICE S.P. WANGDI, JUDGE

03. 22.08.14 Present: M/s. Dr. Doma T. Bhutia and Sarita Bhusal, (Jain, CJ)Advocates for the petitioners. (Jain, CJ)Advocates for the petitioners.

M/s. S.K. Chettri and Pollin Rai, Asstt. Govt. Advocates for State-respondents No. 1, 2, 4, 5, 6 and 8.

M/s A. Moulik, Sr. Advocate with K.D. Bhutia and Manish Kr. Jain, Advocates for respondent No. 3.

M/s. Karma Thinlay, Central Govt. Advocate with Thinlay Dorjee Bhutia, Advocate for respondents No. 7 and 9.

…

Affidavit in reply filed on behalf of respondent No. 3 on 11.07.2014 and rejoinder affidavit filed on behalf of petitioners to written objection/reply filed on behalf of State-respondents No. 1, 2, 4, 5, 6 and 8 and another rejoinder to the affidavit in reply on behalf of respondent No. 3, are taken on record.

2. Learned counsel for petitioners submitted that the matter is of an urgent nature, therefore, it may be heard today. Learned counsel for respondents have no objection to it.

3. Heard learned counsel for the parties.

4. The petitioners have preferred this Transfer Petition under Section 24(1)(a) of the Code of Civil Procedure (for short, (the CPC’) for transfer of writ petition (PIL) No. 6/2013, to National Green Tribunal, Principal Seat at Delhi. 5. The only submission of learned counsel for petitioners is that since some environmental issues are involved in the writ petition, therefore, in view of judgment of Hon’ble Apex Court in Bhopal Gas Peedith Mahila Udyog Sangathan and others vs. Union of India and others : (2012) 8 SCC 326, the writ petition be transferred to National Green Tribunal, Principal Seat at Delhi.

6. The respondents have opposed the prayer of transfer of writ petition by filing counter affidavit and an affidavit in reply that no environmental issues are involved in the writ petition. Therefore, the writ petition cannot be transferred to National Green Tribunal. It is further stated that the judgment of Hon’ble Apex Court in Bhopal Gas Peedith Mahila Udyog Sangthan (supra), is not applicable in the facts and circumstances of the present case. It is also stated that simple issue raised in the writ petition is about an accidental formation of cavity and most of the prayers in the writ petition are relating to award of compensation to farmers, house owners, for damages, if any.

7. We have considered the submissions of learned counsel for the parties. So far as Transfer Petition under Section 24 CPC is concerned, it is relevant to observe that National Green Tribunal is not subordinate to this Court, so as to exercise the powers under Section 24 of the CPC. However, learned counsel for petitioners submitted that mentioning of wrong section, in which, the petition has been filed is merely a technicality, therefore, this petition should not be dismissed on this ground and the writ petition be transferred in view of paragraph 40 of Bhopal Gas Peedith Mahila Udyog Sangthan case (supra).

8. Since, there is a dispute in between both the parties about jurisdiction of the National Green Tribunal and as to whether the environmental issues are involved in the present case or not, the same can be examined when the writ petition itself is heard. The writ petition was also listed today, but on the request of learned counsel for State-respondents, which was not opposed by learned counsel for petitioners, the writ petition has been adjourned for 28.08.2014. It would have been more appropriate to argue this Transfer Petition on the next date when the writ petition is fixed, but learned counsel for petitioners submitted that this Transfer Petition is of an urgent nature and be heard today itself.

Conclusion

9. It is relevant to mention that the National Green Tribunal Act (for short, ‘the NGT Act’) was published in Gazette Notification on 02.06.2010 and National Green Tribunal was established on 18.10.2010, whereas the present writ petition was filed before this Court on 08.11.2013. The period of limitation is prescribed for approaching the National Green Tribunal. It appears that to circumvent the provisions of law, the petitioners approached this Court by mentioning certain other issues, which are not triable by the National Green Tribunal along with Stay Application. The Stay Application was pressed and an interim order was also passed way back on 12.12.2013, which has been made absolute also till the disposal of the writ petition. The petitioners filed this Transfer Petition on 27.06.2014.

10. The pleadings are complete in the writ petition and it has been fixed for final hearing. Now the next date for hearing of the writ petition (PIL) No. 06/2013 is 28.08.2014.

11. The Hon’ble Apex Court, in paragraph 40, of the judgment in Bhopal Gas Peedith Mahila Udyog Sangthan (supra) has specifically observed that all the matters instituted after coming into force of the National Green Tribunal Act (for short, ‘the NGT Act’) and which are covered under the provision of the NGT Act and/or in pm/jk Schedule I to the NGT Act shall stand transferred and can be instituted only before National Green Tribunal. Whether environmental issues, which are covered under NGT Act, are involved in the writ petition or not, has to be decided first, after hearing both the parties and only, thereafter, the writ petition can be transferred. Learned counsel for petitioners refused to withdraw the writ petition with liberty to file the case before the National Green Tribunal at Delhi.

12. After considering all the facts and circumstances of the case, we are not inclined to allow this Transfer Petition at this stage, and the same is accordingly dismissed. However, a liberty is granted to the petitioners to make a prayer about transfer of the writ Petition (PIL) No. 06/2013 to National Green Tribunal on the basis of judgment passed by Hon’ble Apex Court in Bhopal Gas Peedith Mahila Udyog Sangthan (supra), while arguing the writ petition (PIL) No. 06/2013 on the date of hearing fixed in the case.

Judge Chief Justice 22.08.2014 22.08.2014

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