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2017 Supreme(Kar) 755
IN THE HIGH COURT OF KARNATAKA
ASHOK B. HINCHIGERI, K.S. MUDAGAL, JJ.
Bruhat Bengaluru Mahanagar Palike, Bangalore - Appellant
Versus
Jayaram Gouda & Others - Respondents
Writ Petition No. 54409 of 2015 (GM-POL)
Decided On : 26-04-2017
Advocate Appeared:
Devaraj Ashok, Nalina Mayegowda, A. Yogeshwaran, Sunil, C. Ramakrishna, Gururaj Joshi, D. Ashwathappa
Headnote:
Civil Procedure Code, 1908 - Section 100 - National Green Tribunal Act, 2010 - Sections 29,16(h),22,2(l)(m),4(1)( c) - Constitution of India ,1950 - Articles 226 and 227 - Challenge - BBMP for establishing 200 TDP Common Municipal Solid Waste Management Project Facility - State Level Environmental Impact Assessment Authority issued the environmental clearance on BBMP for establishing TDP Common Municipal Solid Waste Management Project Facility on lands at Survey of Lingadheeranahalli Village South Taluk Bengaluru - This was challenged by first respondent before NGT- NGT granted interim stay on which was continued until further orders - On project proponent that is special Commissioner of BBMP placed request before NGT that permission be accorded to proceed with work without claiming any equity and subject to result of appeal - Whether writ petition is liable to be thrown out in limine in view of availability of remedy of filing appeal under Section 22 of NGT Act ? whether there is any legal impediment for BBMP to file appeal invoking Section 22 of NGT Act ?whether interim order passed by this Court would come in way of first respondent approaching NGT ?Whether said order is passed on basis of proper application under Prior Environmental Clearance Notification whether all procedural requirements are complied with while granting environmental clearance etc are to be examined - Whether BBMP has provided for safeguards in pre-establishment stage of Plant in question - Held, Court to halt contempt proceedings - Nothing prevented BBMP from approaching this Court or Honble Supreme Court as soon as interim stay was granted - Alternatively it ought to have placed all records before NGT and sought early disposal of main matter - For reasons best known to itself BBMP has not chosen to do so - We are informed at Bar that of is adjourned to before NGT- If BBMP and other parties place all records before NGT and raise every tenable contention before NGT matter itself could be given a quietus -
Ashok B. Hinchigeri, J.
1. This petition is filed by the Bruhat Bengaluru Mahanagara Palike ('BBMP' for short) raising the challenge to the National Green Tribunal ('NGT')'s orders dated 17-8-2015 (Annexure-A) and dated 18-11-2015 (Annexure-B).
2. The facts of the case in brief are that the State Level Environmental Impact Assessment Authority issued the environmental clearance on 19-6-2015 to the BBMP for establishing 200 TDP Common Municipal Solid Waste Management Project Facility on the lands at Survey Nos. 16/1, 21/1 and 21/2 of Lingadheeranahalli Village, Kengeri Hobli, South Taluk, Bengaluru. This was challenged by the first respondent in Appeal No. 44 of 2015 before the NGT. The NGT granted interim stay on 17-8-2015, which was continued until further orders. On 8-10-2015, the project proponent, that is, the Special Commissioner of BBMP placed the request before the NGT that the permission be accorded to proceed with the work without claiming any equity and subject to result of the appeal. The NGT did not accede to the request of the BBMP holding that there is no necessity to make any order on the BBMP's request and it posted the matter for final hearing on 3-11-2015. On being complained that the interim order of the NGT is violated, the NGT directed the Special Commissioner of the BBMP to be present before it for giving evidence on 24-11-2015. The case was adjourned to 28-1-2016. In the meanwhile, this petition is filed challenging the orders dated 17-8-2015 and 18-11-2015. On 9-12-2015 this Court granted stay of all further proceedings in Appeal No. 44 of 2015. I.A. No. 1 of 2016 filed by the first respondent for vacating the interim order was rejected by this Court by its order dated 11-4-2016. Aggrieved by the same, the first respondent preferred Special Leave to Appeal (Civil) Nos. 7357 and 7358 of 2017. The Hon'ble Supreme Court disposed of the said S.L.P. by its order dated 23-2-2017. The said order reads as follows :
"Having heard learned Counsel for the petitioner, we are only inclined to request the High Court of Karnataka at Bangalore to dispose of Writ Petition No. 54409 of 2015 (GM-POL) by end of April 2017. We are making such a request as the learned Counsel for the petitioner would submit that by virtue of the order of stay, the Corporation is presently at liberty to dump the waste at the backyard of the petitioner. The seriousness of the allegation requires to be addressed.
In view of the aforesaid, the request has been made and we are sure that the High Court shall apprise itself to the same and dispose of the matter within the aforesaid time frame.
The special leave petition stands disposed of accordingly."
3. Sri Devaraj, the learned Counsel for the petitioner submits that when this Court is seized of the matter, the NGT ought not to have entertained the appeal, filed by the first respondent. He reads out the order dated 23-9-2014 and 9-1-2015 passed in W.P. No. 24739 of 2012.
4. He submits that the entertaining of the appeal by the NGT and the consideration of the matter by this Court may lead to conflicting decisions. He submits that even the Upalokayutha is called upon not to intervene in the matter, as this Court is seized of the matter for over two years.
5. He submits that the liberty is reserved to any aggrieved party to appear before this Court, put forth his case and seek appropriate remedy. He submits that the first respondent's learned Advocate had submitted before the NGT that the first respondent would implead himself in the pending writ petitions proceedings before this Court. Having undertaken to do so, the first respondent is estopped from filing the appeal before the NGT.
6. He relies on the Division Bench's decision of the Bombay High Court in the case of Court on its Own Motion v. National Highway Authority of India, Nagpur and Others, (2015) 6 AIR Bom. R. 524 (DB). Paragraphs 62, 63 and 64 of the said decision read as follows :
"62. While exercising the jurisdiction in that regard,
