Bhagat Singh Kinnar vs Union Of India & Ors

Order dated 16th April, 2010 passed by Government of India, Ministry of Environment and Forests granting environment clearance to Himachal Pradesh Power Construction Ltd., for construction of Integrated Kashang Hydroelectric Power Project was assailed by the appellant under Section 11(1) of the National Environment Appellate Authority Act, of 2977 before the National Environment Appellant Authority (NEAA) and the same was registered as Appeal No. 16 of 2010. After the formation of National Green Tribunal under the National Green Tribunal Act, 2010, the said appeal stood transferred to this Tribunal and has been registered as Appeal No. 15 of 2011(T).

In response to the notices issued the appellant as well respondents have appeared before the Tribunal and the matter was posted for commencement of hearing. At that stage the present application was filed by the appellant with a prayer to permit him to amend some of the averments made in the Memorandum of Appeal.

It is averred that the appellant is an illiterate person and hails from a remote tribal district of Himachal Pradesh. It is further, stated that village Rarang where Shri Negi resides is situated more than 50 kms away from the Headquarters and is near to the Indo Tibbetan border. Further according to the appellant, suitable legal assistance is not available either in the village or in its vicinity. The appellant on coming to know about the impugned order and on being told that the limitation for preferring an appeal before the NEAA would expire soon, rushed to Delhi and filed the appeal to save the limitations. It is further averred that after consultation with some of the advocates, and on being told that all the averments have not been made, the appellant as per the instructions of his advocates seeks to amend the Memorandum of Appeal.

Mr. Naresh Kumar Sharma, Learned Counsel appearing for Respondent No. 5 & 6, strongly repudiates the contentions raised by the appellant. On behalf of Respondent No. 5 & 6, a counter to the amendment petition is also filed denying the facts stated and averments made in the application seeking amendments. On behalf of the Ministry, however, no objection has been filed.

In course of hearing, Learned Counsel appearing for the appellant reiterated the stand taken in the application for amendment. It is submitted that the appellant are poor person belonging to tribal community and belongs to lower strata of society, and are residents of remote areas and there is neither enough communication facilities nor transport facilities. Mr. Sharma further submits that the appellant is a poor man and due to paucity of funds, it is not possible for him to come to Delhi often and seek legal assistance.

Mr. Naresh K. Sharma, Learned Counsel appearing for the contesting respondent on the other hand submits, that there is deliberate laches on the part of the appellant in as much as though the appeal was filed before the NEAA long back he took no steps to amend the Appeal Memorandum. According to Mr. Sharma the attempt made at this belated stage is only to cause delay in the hearing of the appeal and thereby prejudice the Respondents. It is, further stated that by efflux of time the cost of the project is increasing consequently the Respondent shall be greatly prejudiced.

Mr. Naresh K. Sharma, drew our attention to the fact that originally the appeal was filed before the NEAA assailing the environment clearance granted by the MoEF. The appellant by way of amendment of Appeal Memorandum is trying to assail the forest clearance granted on 14th June, 2011. The said order being not the subject matter of the earlier appeal, the prayer should not be accepted. Even otherwise it is, according to Mr. Sharma the time for assailing the order dated 14th June, 2011 having expired long back the said prayer cannot be introduced by way of amendment.

Heard Learned Counsel for the parties at length. So far as amendment for pleadings are concerned, as would be evident from several judgments of the Supreme Court, a Court should be liberal and unless the amendment sought for causes injustice or prejudice to the other side, should allow the same. The amendment sought, should be necessary for the purpose of determining the real question in controversy between the parties and for effectual adjudication of the inter se disputes, it is always prudent to allow amendment of the pleadings unless the same causes injury which cannot be compensated in terms of cost.

In the case of Municipal Corporation of Greater Bombay V/s Lala Pancham and Others AIR 1965 Supreme Court 1008, a Constitution Bench of the Supreme Court observed that even the Court itself can suggest the amendment to the parties for the reason that main purpose of the Court is to do justice, and therefore, it may invite the attention of the parties to the defects in the pleadings, so that the same can be remedied and the real issue between the parties may be tried. However, it should not give rise to entirely a new case.

After going through the pleadings and the proposed amendment, we feel that the amendments sought for are more in the nature of elucidating and clarifying the facts most of which have been pleaded earlier. That apart, as stated earlier, the appellant is a resident of remote village and it is difficult to get proper legal advice. The appeal was pending at Delhi, and travelling from Village Lippa to Delhi is a cumbersome affair for an ordinary person. The amendment sought for are also necessary for effectual adjudication. The same does not change the nature and character of the case pleaded, nor take away any admissions made.

However, the appellant cannot be permitted to introduce a prayer which has become time barred by way of amendment. That apart the amendment sought in paragraph -Z of the application is out of context and cannot be allowed.

For the reasons stated above, we allow the petition for amendment in part, in as much as, the amendments made in Para-Z are disallowed and so also the prayer made in sub-para A of para BB. The Appellant is permitted to incorporate the averments made in other paragraphs i.e. except the facts stated in paragraph-Z and sub-para A of BB of the amendment petition and file a consolidated Memorandum of Appeal for convenience, after serving copies thereof on all the Respondents or their Counsel, the respondents are granted time to file further reply if they so desire. The application is accordingly disposed of.