Vidur Thanawala and Pavani Chugh, Nyayshastram
Introduction
In the case in hand, the appellant is a joint venture company, incorporated for the construction of a multi-storeyed apartment complex in Kakkanad Village of Thrikkakara Municipality. The construction was commenced after obtaining Exhibit P1 No Objection Certificate dated 4.2.2006. All the other required permissions from the concerned authorities were also obtained. Later, State Environmental Impact Assessment Authority and State Environment Assessment Committee, both represented by its Secretary initiated proceedings against the appellant stating that the appellant had failed to obtain prior environmental clearance under the Environmental Impact Assessment Notification which was issued on 14th September 2006. Further, the appellant approached the writ court and filed a writ petition stating some of the reliefs that they seek. On 18th June 2020, the writ court passed an interim order, suo motu impleading the Kerala State Remote Sensing and Environmental Centre to produce satellite imagery of the subject property. After all the discussions the court came up with the decision that they could not record any findings against the appellant.
Background
In the given case, writ court passed an interim order and in Para 7 of the impugned order, it was mentioned that the satellite imagery that was available at Google Earth Pro does not show any construction of the property as on 11.12.2006 and on 06.01.2008 which was later cleared by the appellant that the latitude and longitude mentioned with the picture do not relate to the actual position of the property. By doing so the appellant proved that the writ court had observed the wrong images and that his property was 400 meters away, so the writ court invites an additional 7th respondent to make available the satellite image of the appellant’s property as on 14.09.2006 and 06.11.2006 and even the commencement of construction of each block in the project. By looking at Para 7 of the order it was evident that the 7th respondent was to submit a report on the image, which does not pertain to the case on hand. The unnecessary act on the part of the learned Single Judge had invited the 7th respondent to explore and file an affidavit that does not come within the purview of objects of the said body.
The case at hand is that the writ court without acceding to the submission by the respondents seeking time to file a counter-affidavit directed an authority, who was not the part of the case, to produce certain documents to prove some points, which are not at all the case of any respondents that were involved. The points mentioned in the impugned order open up the question pertaining to the criteria to evaluate the fairness of procedure applying the rules of natural justice. On this ground, the appellant contended that the interim order should be interfered with by the Court. Mr. Dandapani, learned Senior Counsel appearing for the appellant, placed reliance on the decision of the Hon’ble Supreme Court in Bharat Ratna Indira Gandhi College of Engineering and Ors. Vs. State of Maharashtra[1] and on Para 5 in Divisional Manager, Aravali Golf Club and Ors v. Chander Hass and Ors[2].
Analysis
In the case, the appellant filed a writ petition, under which he clearly stated that he had commenced the construction work based on Exhibit P1 No Objection Certificate so the petitioner cannot be treated as a violator under the provisions of Section 15[3] and 19[4] of the Environment Impact Assessment Act which was issued on 14th September 2006. Later on, in the arguments, there is no mention of these sections or the procedure which should have been followed under Section 15 of the act. In my viewpoint, there should have been a check whether the appellant has done everything that needed to be done according to the process instead of appointing an additional respondent for the satellite imagery.
Further, Mr. Dandapani, learned Senior Counsel appearing for the appellant referred to the decision of two case laws to justify that the practice of the Court is to obtain instructions from respondents and proceed further and not to go beyond procedure that is followed by the court, for a long time and render a finding against the appellant. He further wanted to justify that suo motu impleading the Kerala centre, as the additional 7th respondent and issuing directions to the said respondent, without waiting for the respective counter-affidavits from other respondents, are wholly unwarranted. In Para 15 of the Divisional Manager, Aravali Golf Club case, it is clearly stated that the Court cannot direct the creation of posts. Further in para 17, it was mentioned that in the name of judicial activism Judges cannot cross their limits and try to take over functions that belong to another organ of the State. In Para 20 of the decision, it was stated that Judges must know their limits and must not try to run the Government. Para 21 talked about a theory of “separation of powers”. In the other case, Bharat Ratna Indira College of Engineering and Ors, it was stated that the High Court should not be indulging in judicial legislation.
The above-mentioned case laws made it clear that the decisions were in relation to the exercise of legislative or executive function and the case on hand, is apposite. So, the Court held that if the appellant is in possession of the photographs of the property and the period of the commencement of construction then it is always open to the appellant to contend before the writ court that the opinion of writ court is not correct. Further, it was held that the writ court could not record any findings against the appellant. In my viewpoint, the decision of the court is appropriate and the reasoning is also justified. The only issue did it miss was the one where they could have cross-checked the procedure that the appellant had adopted at the time of commencement of construction that was mentioned in Section 15 of the EIA Act, and could have been discussed in detail.
Conclusion
In my view, the decision taken by the court was correct and appropriate. In the arguments, Mr. Dandapani, learned Senior Counsel appearing for the appellant, had very clearly discussed and proven his point through the case laws. There was no appropriate reasoning from the respondents that could prove that the appellant was at fault. The judgment was justified and it cleared the laws.
[1] Bharat Ratna Indira Gandhi College of Engineering and Ors. v. State of Maharashtra and Ors. (2011) 4 SCC 565
[2] Divisional Manager, Aravali Golf Club and Ors. v. Chander Hass and Ors. (2008) 1 SCC 683.
[3] 15. Environmental assessment process
Whenever the Agency decides that there is the need for an environmental assessment on a project before the commencement of the project, the environmental assessment process may include‐
(a) a screening or mandatory study and the preparation of a screening report;
(b) a mandatory study or assessment by a review panel as provided in section 35 of this Act and the preparation of a report;
(c) the design and implementation of a follow‐up program.