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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
G.S. PATEL, NUTAN D. SARDESSAI, JJ.
The Goa Foundation, Through Its Secretary, Dr. Claude Alvares & Others – Petitioners
Versus
Ministry Of Environment, Forest And Climate Change Through Its Secretary, Indira Paryavaran Bhavan & Others – Respondents
Writ Petition No. 22, 23, 778, 783, 787 of 2017 along with Misc Civil Application Nos. 732, 740 of 2017 & Suo Motu Writ Petition No. 1 of 2017
Decided On : 11-10-2017
NGT - JURISDICTION - TRANSFER - WRIT PETITION - ARBITRARINESS - ACCESS TO JUSTICE - CONVENIENCE - INCONVENIENCE - NGT ACT, 2010 - SECTION 4(3) - CONSTITUTION OF INDIA, 1950 - ARTICLE 21 - RIGHT TO LIFE - ARTICLE 14 - EQUALITY BEFORE LAW - ARTICLE 39-A - LEGAL AID - RIGHT TO ACCESS TO JUSTICE - FACETS - EFFECTIVE ADJUDICATORY MECHANISM - REASONABLE DISTANCE - SPEEDY ADJUDICATION - AFFORDABLE PROCESS - LOGISTICAL INCONVENIENCE - FINANCIAL HARDSHIP - PREJUDICE TO STATE GOVERNMENT AND LITIGANTS - SHIFTING OF TERRITORIAL JURISDICTION - MANIFEST ARBITRARINESS - QUASHING OF NOTIFICATION.
Fact of the Case:
The National Green Tribunal (NGT) Western Zone Bench, initially established in Pune, had territorial jurisdiction over Maharashtra, Gujarat, and Goa, along with the Union Territories of Daman, Diu, Dadra, and Nagar Haveli. However, in 2017, a notification was issued transferring the jurisdiction of cases from Goa, Daman, Diu, Dadra, and Nagar Haveli to the NGT's principal bench in New Delhi. This led to several writ petitions challenging the transfer, arguing that it was arbitrary and caused inconvenience and hardship to litigants from Goa.
Finding of the Court:
The Court held that the impugned notification was facially arbitrary and violative of the principles of access to justice and equality before the law. It observed that the transfer of jurisdiction from Pune to New Delhi was based solely on the convenience of the State Government, which was an irrelevant consideration. The Court emphasized that access to justice is a fundamental right and that the convenience of the Government cannot override the rights of litigants. The Court also noted that the transfer would result in increased costs and inconvenience for litigants from Goa, who would now have to travel to Delhi for hearings. The Court further held that the notification was issued without any consultation with stakeholders, including litigants and lawyers, and without any assessment of the impact on individual litigants.
Issues: 1. Whether the transfer of jurisdiction from Pune to New Delhi was arbitrary and violative of the principles of access to justice and equality before the law? 2. Whether the convenience of the State Government can override the rights of litigants? 3. Whether the transfer would result in increased costs and inconvenience for litigants from Goa? 4. Whether the notification was issued without any consultation with stakeholders and without any assessment of the impact on individual litigants?
Ratio Decidendi: 1. The Court held that the impugned notification was facially arbitrary and violative of the principles of access to justice and equality before the law. It observed that the transfer of jurisdiction from Pune to New Delhi was based solely on the convenience of the State Government, which was an irrelevant consideration. The Court emphasized that access to justice is a fundamental right and that the convenience of the Government cannot override the rights of litigants. 2. The Court held that the convenience of the State Government cannot override the rights of litigants. It observed that the transfer would result in increased costs and inconvenience for litigants from Goa, who would now have to travel to Delhi for hearings. 3. The Court held that the notification was issued without any consultation with stakeholders, including litigants and lawyers, and without any assessment of the impact on individual litigants.
Final Decision: The Court quashed and struck down the notification transferring the jurisdiction of the Western Zonal Bench from Pune to New Delhi in regard to the State of Goa. It directed that no files should be transferred from the Western Region Bench to New Delhi and that the Western Region Bench would be entitled to proceed with the hearings of cases filed before it.
G.S. Patel, J.
1. Rule in all writ petitions. By consent, made returnable forthwith and taken up for hearing and final disposal.
2. On 21st August 2017, having seen news reports in several newspapers that morning, all saying that matters before the National Green Tribunal (“NGT”), Western Zone, coming up from Goa had been transferred by a notification of the Ministry of Environment and Forests (“MoEF”) to the NGT’s principal bench in New Delhi, we took up the matter as a suo motu Writ Petition/PIL. That day we also requested Mr SD Lotlikar, Senior Advocate, to assist us as amicus. We also noted that on that very day, while we took up the issue as a suo motu PIL, two other PILs on the same subject matter had already been filed and were being mentioned. In the time since, several other PILs have been filed. All of them challenge this notification of transfer of the jurisdiction.
3. We have now an affidavit in reply from the MoEF filed in the suo motu Writ Petition and an affidavit in reply by the State Government in what we decided would be the lead matter, PIL Writ Petition No. 22 of 2017 filed by the Goa Foundation.
4. We have heard learned amicus, Mr Lotlikar, Mr Kantak for the Petitioners in one of the matters, Mrs Norma Alvares for the Petitioner in the lead matter, Mr Mario Brut da Costa, Mr Nigel Frias Costa, Mr Nadkarni and Mr Ryan Menezes. We also heard Mr Lawande, learned Advocate-General for Goa and Mr Vivek Rodrigues for one of the intervenors (indeed the only intervenor) supporting the State Government.
5. Shortly stated the issue is this. Some six years after the NGT set up its bench in the Western Zone, on 10th August 2017, the MoEF notified a change to the effect that all matters coming up from Goa, Daman, Diu, Dadra and Nagar Haveli would be taken up by the NGT principal bench in Delhi. Until then, these matters were being heard by the NGT Western Zone Bench in Pune.
6. The affidavit in reply by the MoEF, and to which we will presently turn in somewhat greater detail shortly, says in essence that it first received a proposal for setting up a Circuit Bench in Goa. This was because of the large volume of filings at the NGT Western Zone Bench from Goa. The MoEF seems to have sought the opinion of the chairperson of the NGT. There seems to have been no response. The MoEF then received another proposal from the State Government of Goa to transfer all matters, including pending matters, to the principal bench in New Delhi. The MoEF acted on this and it did so without any form of public consultation with other ‘stake holders’, including litigants. The State Government, for its part, says that while an ideal situation would be to have a Circuit Bench in Goa, the places suggested by the Petitioners for accommodating such a Circuit Bench are unsuitable. As the next best option, a Bench could be constituted in Bombay. Failing that, the State Government says the principal seat in Delhi is the least inconvenient and, in any case, is far less inconvenient than the Western Zone Bench in Pune.
7. It seems to be common ground that a Circuit Bench in Panaji is an optimal solution. For whatever reason that has not happened, and we do not believe we can issue a mandamus to command the setting up of a Circuit Bench in Panaji. This would require very many arrangements to be made. Apart from noticing that we are unclear from what is available on record why there was no response from the NGT itself in regard to this first proposal mooted by the Government, we need say nothing further. At best, we may only note that there are indeed NGT Circuit Benches elsewhere in the country, such as Shimla. The concept and provisioning of Circuit Benches for the NGT is, therefore, not unknown.
8. The notification constituting the Western Zone Bench is dated 17th August 2011. We find a copy annexed to the Goa Foundation PIL at page 26. This divides cases for the NGT geographically into the Northern, Western, Central, Southern and Eastern Zones, and
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