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Judgment
Review Application under Section 19 (4) (f) of the National Green Tribunal Act, 2010.
The applicant has filed the present application for review of order dated 17.10.2022 and reconsideration of the matter after revised inspection and then initiate action against the principal and the Chairman of the School managing committee in their individual capacities and not to impose fine on the school because school money belongs to the students.
The applicant has filed the present review application on the averments that the applicant is not satisfied with the report of the Joint Committee. The members of the Joint Committee did not physically inspect the premises of the school and submitted the report based on the statement of Shri Manoj Kumar, the building caretaker of school.
The point-wise submissions of the applicant on the status report of the joint committee constituted by this Tribunal are as under:-
“1. 12 BORE-WELLS
i. The petitioner still insists that there are 12 bore-wells in the school and all the twelve are functional. The petitioner does not agree with the report of the Joint Committee. The members of the Joint Committee have not physically inspected the premises of the school and have submitted the report based on the statement of Shri Manoj Kumar, building caretaker of school which states as under:-
"Shri Manoj Kumar (building caretaker of Vivekanand School) also confirmed that there is no other bore-well in the school premises.
In order to support his claim, the complainant is attaching a layout with accuracy the presence of all the 12 bore wells as ANNEXURE.
ii. Further, the school has installed a fountain at the entry gate. It fills with more than 5000 liters of water for operation. The school is either using ground water with bore-well or the fountain is operational with fresh drinking water supplied by DJB, meant for about 4,700 children + 200 teachers + 100 support staff which is an offence and is highly objectionable when there is so much of shortage of water in Delhi.
iii. Secondly, the school has only two DJB water meter connections which are not sufficient to meet the drinking water requirement of 4700 students + 200 teachers + 100 support staff. It is only because of the said problem that the school installed a commercial RO system with filtration capacity of 1000 liters with a bore-well.
iv. The Joint Committee failed to observe the water fountain in the school premises. The Joint Committee failed to verify the DJB water bills and the Joint Committee also failed to comment as to where from the deficit of the water is met or will be met by the school in the absence of the bore-wells.
v. The school be directed to submit the water bills to support their claims that they are not using ground water from bore-wells for drinking, for toilets and for other day to day activities
vi. There is no system of water re-cycling in the fountain.
1000 LITRES COMMERCIAL RO
The Joint Committee confirmed in the report that one RO system was present in the school premises but gave a clean chit to the school by concluding that the representative of the school informed that it is non functional. The Joint Committee failed to physically check whether the RO system was working or not but simply concluded the report on the basis of the statement of the school representative. In fact the RO system is actually working and is being serviced from time-to-time because yearly AMC is signed by the school for the same.
11000 KV TRANSFORMER
There is a 11,000 KVA electricity transformer installed in the school. No security measures/protocol is in place for the same. The primary students' entry and exit is just next to the said transformer. Despite multiple complaints from the parents no action has ever been initiated by the officials of Delhi Govt./Delhi Police against the school management. There is no fire and electricity safety protocol in place near the said transformer.
100 LITRES DIESEL IN STOCK
The Joint Committee has confirmed the presence of two DIESEL GEN SETS installed on roof top of the school but has given clean chit to the school that no diesel was found in the stock.
At any given moment of time there is a mandatory storage of 100 litres of diesel for Gen Set in the school. The hidden location is next to the 11,000 KVA transformer which itself is a major risk of disaster. The Gen Set cannot function unless and until diesel is kept in store when the function in the auditorium is in progress. The Joint Committee failed to verify the diesel bills from the books of accounts of the school.
2 KVA DIESEL GEN SET
The use of Diesel Gen Sets is banned in Delhi NCR. According to the CAQM's order of February 8, 2022, use of diesel generators will be illegal in NCR from October 1, 2022, ahead of the winter pollution season. The existing DG Sets must be converted to Hybrid/ Dual Fuel mode (with 70 per cent gas-based fuel and 30 per cent diesel) and such DG Sets will also have to be equipped with Retrofitted Emission Control Devices (RECD). Alternatively, only CNG/ PNG GEN Sets are to be used from October 1, 2022.
Leaving aside the lock down period, at least 2/3 functions of outside agencies in a month are regularly arranged in the school auditorium on holidays and Sundays and after school hours, which is against the rule of Directorate of Education. The said GEN Set is turned on 2-3 hours before the start of the function for cooling the auditorium. The Gen Set is kept operational despite the ban in NCR on the same by the NGT.
On 09-11-2022 a very big function (TEDx Vivekanand School) was conducted in the school auditorium with the help of the said GEN Set.
The Joint Committee failed to comment on the stack height of the GEN Set. The Joint Committee failed to inspect the PUC certificate of the Gen Sets. The Joint Committee failed to inspect the bills of the Gen Sets. As per the record of the school, the date of installation of the GEN Set is 2005, which makes the GEN Set 17 years old, whereas no diesel engine older than 10 years is allowed to be used in Delhi NCR.
The Joint Committee failed to verify from the books of accounts of the school the regular use of the GEN Set and the consumption of the diesel. The noise monitoring lab test conducted by DPCC is absolutely wrong, non acceptable and a mere eye wash.
RAIN WATER HARVESTING
The school has made arrangements for three rainwater harvesting pits (at Gate No. 1, Primary Ground and near stage of Sr. Ground) but the said pits are non-functional as they have not been constructed as per the norms. These do not have provisions for ground water seepage because these have concrete floors resulting in the permanent storage of rain water that rots and emits foul smell. The said pits have never been de-silted or cleaned as per the norms.
The Joint Committee failed to inspect the water harvesting system in the school but concluded the report on the basis of the statements of the school representatives. The Joint Committee failed to inspect the NOC issued by the DJB for these three rain water harvesting pits constructed by the school management in 2021.
The Rain Water Harvesting certificate dated 12-01-2021 issued by DIB that Rain Water Harvesting Structure in the school is sufficient and adequate is wrong and not acceptable.
THROWING OF DIESEL IN DRAINS
No comments can be offered in this regard because the school must have destroyed all the evidence.
The Joint Committee submitted report under some pressure because Mr. Yog Dhyan Ahuja father of Mr. Praduman Ahuja, the Chairman of the school managing committee was the Mayor of Delhi. Further the office of SDM has also imposed a fine of Rs.1.00 lac as environment compensation so that National Green Tribunal does not impose any further fine or enhance the fine amount. This Tribunal appointed the Joint Committee vide order dated 25-07-2022 and ordered the Joint Committee to inspect the school and submit the report within two months. The Joint Committee visited the school on 17-08-2022 and the Chairman of the school got almost one full month to cover up everything before the Joint Committee could visit the school. The applicant has requested this Tribunal to appoint another Committee comprising of the Senior Officials of this Tribunal who should pay a surprise visit to the school under police protection.
The applicant has submitted that provisions regarding limitation are not applicable as this Tribunal gave the applicant liberty to approach the Tribunal if considered necessary.”
In view of the averments made in the application for review the same was ordered to be listed in the Court instead of disposing of the same by circulation.
We have heard the applicant and gone through the impugned order and the application for review as well as the documents attached with the same and on due consideration thereof we are of the considered view that the application is devoid of any merit and deserves to be dismissed.
The Applicant filed O.A. No. 528/2022 complaining about violations of the environment norms and causing of air, water, soil and noise pollution Vivekanand School, D-Block, Anand Vihar, Delhi-92 involving the following issues:-
12 Bore-Wells.
1000 Itrs. Commercial RO.
11,000 KVA Electricity Transformer.
100 litres of diesel in stock.
62 KVA Diesel Generating Set.
Non-functional Rain Water Harvesting Pits.
Throwing of diesel in drains.
This Tribunal vide order dated 25-07-2022 constituted a Joint Committee comprising of DPCC, State Ground Water Authority and Deputy Commissioner (Shahdara) to verify the factual position and take remedial action thereafter.
In compliance thereof, Status Report alongwith inspection report of the Joint Committee was filed by Mr. P.S. Pankaj, Senior Environmental Engineer on behalf of DPCC vide email dated 20.09.2022.
No objections were filed by the applicant to the report of the Joint Committee before or at the time of hearing of the matter on 17.10.2022.
After hearing the applicant and Learned Counsel for the Project Proponent and the DPCC and on perusal of the material on record including the inspection report of the Joint Committee, this Tribunal disposed of O.A. 528/2022 vide order dated 17.10.2022. The relevant part of the order reads as under:-
"X X X X
8.In view of the observations/recommendations made in the Status Report and Inspection Report of the Joint Committee and the facts and circumstances of the case, the application is disposed of with the directions to the DPCC (i) to take appropriate proceedings for imposition of environmental compensation on the Project Proponent-Vivekanand School for violation of the environmental norms, if any, by following due process of law and (ii) issue appropriate directions to the Project Proponent-Vivekanand School for making rain water harvesting systems fully functional.
Further Action Taken Report be filed by the DPCC through email within six months at judicial-ngt@gov.in preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF, before the Ld. Registrar General, National Green Tribunal, Principal Bench, New Delhi who may, if necessary, put up the matter before this Bench for further directions.
It is also clarified that any of the parties having any grievance at any subsequent stage shall be at liberty to move this Tribunal for further directions in the matter as may be considered necessary.”
Section 19 (4) (f) of the National Green Tribunal Act 2010 empowers this Tribunal to review its decision. Order 47, Rule 1(1) of the C.P.C., which provides for review, reads as under:
"Any person considering himself aggrieved –
a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
b) by a decree or order from which no appeal is allowed, or
c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.”
In Kamlesh Verma Vs. Mayawati (SC): (2013) 8 SCC 320 Hon’ble Supreme Court observed as under:-
“19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Summary of the Principles:
Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1 When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius & Ors., (1955)1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. & Ors., 2013 8 SCC 337: JT 2013(8) SC 275.
20.2 When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”
It follows from the above that review proceedings are not by way of an appeal in disguise whereby an erroneous decision is re-heard and corrected, but have to be strictly confined to the scope and ambit of Order 47 Rule 1 of C.P.C. In review jurisdiction, mere disagreement with the view of the judgment/order and plausibility of an alternative view cannot be the ground for invoking the same.
In the present case no objections to the report of the Joint Committee were filed by the applicant on or before 17.10.2022 the date of hearing fixed in the case which was disposed of vide order dated 17. 10.2022 after hearing the applicant and learned Counsel for the Project Proponent and the DPCC and due consideration of the material on record. Neither the applicant has alleged nor there is any material to show discovery of any new and important matter or evidence which was not within knowledge of the applicant or could not be produced by him after the exercise of due diligence on or before the date of hearing fixed in the case. The applicant cannot be allowed to file objections to the report of the Joint Committee after disposal of the case for rehearing afresh of the same. There is no mistake or error apparent on the face of the record and there is no other sufficient analogous reason for review of the order dated 17.10.2022.
The liberty granted vide order dated 17.10.2022 to any of the parties having any grievance at any subsequent stage to move this Tribunal for further directions in the matter as may be considered necessary does not and cannot be construed as liberty to seek re-hearing/re-adjudication of the issues decided vide order dated 17. 10.2022.
It would be appropriate to clarify here that further Action Taken Report has to be filed by the DPCC in terms of order dated 17.10.2022 and in the eventuality of the applicant having any grievance regarding non-compliance of order dated 17.10.2022 by the DPCC, the applicant shall be at liberty to file objections to the Action Taken Report of the DPCC, if so desired.
In the above discussed facts and circumstances of the case, we are of the considered view that no ground is made out for review of order dated 17.10.2022 and the present review application, being devoid of any merit, is accordingly dismissed.