BEFORE THE NATIONAL GREEN TRIBUNAL NEW DELHI,
APPEAL No. 34 of 2011
1. Janajagarathi Samithi
Through its Executive President
Shri Balakrishna Shetty
1. Union of India,
Through the Secretary,
Ministry of Environment & Forests
Paryavaran Bhavan, CGO Complex,
Lodhi Road, New Delhi-110003.
2. State of Karnataka,
Through the Chief Secretary
3. Karnataka State Pollution Control Board, Through the Member Secretary,
Karnataka State Pollution Control Board, "Parisara Bhavan", No. 49, 4th & 5th Floor, Bangalore-560001.
4. M/s Udipi Power Corporation Ltd., (formerly, Nagarjuna Power Corporation), Through CEO
2nd Floor, Le-Pare Richmonde,
No.51- Richmond Road,
Counsel for Appellant:
Shri Sanjay Prikh, alongwith Shri Rahul Choudhary
Counsel for Respondents:
Ms. Neelam Rathore for R.1 (MoEF)
Shri Nikhil Nayyar alongwith Ms. Pritha Srikumar for R-2 Shri Kashi Visheswar alongwith Shri Devraj Ashok for R-3 Shri K. Venugopal alongwith Shri Deepak Khurana for R-4
Justice A.S. Naidu (Acting Chairperson) Dr. G.K. Pandey (Expert Member)
.................................................................................................... Dated 27th March, 2012
JUDGMENT BY THE BENCH
1. Janajgrithi Samithi, a Society registered under the provisions of Societies Registration Act, has filed this Appeal, assailing the order dated 1st September, 2011, passed by the Ministry of Environment and Forests (MoEF), allowing amendment of Environment Clearance (EC) for installation / expansion of 2x600 MW imported Coal Base Thermal Power Plant, at Udupi in the District of Karnataka.
The factual scenario reveals that on 20th March, 1997 EC was accorded by the MoEF to M/s Udupi Power Corporation Ltd. (Respondent No.4) for establishing 2x500 MW Power Project. 3
On the basis of a further application filed by the Respondent No.4, the MoEF amended the earlier EC on 25th January, 1999 and 9th September, 2009 respectively, permitting enhancement of the capacity of the said Thermal Power Plant to 2x507.5 MW and subsequently to 2x600 MW.
While matter stood thus, on the basis of further approach made by Udupi Power Corporation (Respondent No.4), the MoEF once again modified the EC and allowed certain amendment to the conditions of EC, vide impugned order dated 1st September, 2011. Perusal of the said order clearly reveals that the same is in the shape or amendment of the original EC granted by the MoEF on 20th March, 1997. The order also specified that the amendment issued merges with the EC granted earlier. The said order as stated earlier is assailed in this Appeal.
2. In course of hearing, it appears that the EC dated 20th March, 1997 granted by the MoEF to Respondent No.4, was assailed before National Environment Appellate Authority (NEAA). The said Authority having refused to set aside the EC the petitioner moved the Hon'ble Karnataka High Court under Article 226 and 227 of the Constitution of India which is registered as W.P. No.21439 of 2005. The said writ petition is still pending before the Hon'ble Karnataka High Court.
3. According to Mr. Parikh Learned Counsel for the Appellant, the EC granted on 1st September, 2011 being a comprehensive one, the same can be assailed only before this Tribunal under Section 18 of the NGT Act, 2010, by way of filing an Appeal.
No doubt, Section-16 of the NGT Act, 2010 vests a right on any person aggrieved by an order granting Environmental Clearance to approach this Tribunal and assail the said order. But then in the case in hand, the impugned order dated 1st September 2011, is only an order amending the EC accorded by the Ministry way back in the year 1997. Law is well settled that an amendment always relates back to the date when the lis commenced. That apart the order clearly reflects, that the amendment accorded on 1st September, 2011 shall merge with the EC granted in the year 1997. Thus there is no ambiguity in our mind that order dated 1st September, 2011 has no separate existence and is a off- spring of the earlier order dated 20th March, 1997. Admittedly Responded No.4 has already commenced the Thermal Power Plant in accordance with the EC granted in the year 1997. All that is sought to be done, by the Respondent, is to amend certain conditions in the original EC. Thus, it can be safely concluded that order dated 1st September, 2011 is nothing but modification of the earlier EC, accorded clearance for amendment to certain condition in the EC.
4. Admittedly the Appellant has assailed the Environment Clearance granted in 1997 before the Hon'ble Karnataka High Court in WP No.21439 of 2005. The main relief sought by the Appellant in the said Writ Application is as follows:-
i) "To ISSUE a Writ of MANDAMUS or any other writ, order or direction in the nature of Mandamus and DECLARE the Environment Clearance Order No.J- 13011/23/96-IA-II (T) dated 20.3.1997 (Annexure 'W') and Order of Extension dated 16.4.2002 (Annexure 'MM') issued by the 1st Respondent as being illegal and violative of Article 21 of the Constitution of India and provisions of the Environment Protection Act.''
5. The order impugned before this Tribunal being only amendment to the Environment Clearance granted in 1997, and as the order dated 20th March, 1997 is the subject matter of dispute before the Hon'ble Karnataka High Court in WP No. 21439 of 2005, and the said case is still subjudiced, we feel, the present Appeal is not maintainable before this Tribunal. Therefore, to avoid conflicting decisions, and also for effectual adjudication of the entire controversy, we feel, it would be just an equitable to dispose of this Appeal giving liberty to the Appellant to work out his remedies in accordance with law by approaching the 6
Hon'ble Karnataka High Court where W.P. No. 21439 of 2005 is pending.
With the aforesaid observations the Appeal is disposed of.
Dr. G.K Pandey Justice A.S. Naidu Expert Member Acting Chairperson Durga Malhotra
27th March, 2012