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Judgment
The original appellant has preferred this review against the final decision made in the appeal dated 13-01-2015 by which the Tribunal has dismissed the appeal. In the review, the applicant has raised a preliminary submission that the brief order dated 13-01-2015 dismissing the appeal to be followed by detail reasons and the detailed reasons dated 13-01-2015 which is not pronounced in the open Court but uploaded in the website of the NGT on 27-02-2015 are nullity in the eye of law.
The Appeal, which was one of the oldest one on the file of the NGT was heard by different Benches and ultimately it was heard in detail by the Bench consisted of the Hon'ble Judicial Members, Justice P. Jyothimani, Justice U. D. Salvi and the Hon'ble Expert Members Dr. G. K. Pandey and Mr. Ranajan Chatterjee from December 2014 till final decision was pronounced. On 13-01-2015, the arguments in the appeal concluded and as on the next day one of the Hon'ble Expert Members forming part the Bench, Dr.G. K. Pandey was to retire, after a brief consultation in the Bench an unanimous brief order was passed, which is as follows:
' We have heard the learned counsel appearing for appellant and respondent in detail. We are satisfied that there are absolutely no merit on all the grounds, raised by the learned counsel appearing for appellant. Accordingly Appeal No. 8 of 2011stands dismissed. There is no order as to cost .Reasons for judgement to follow'
Thereafter, on the same day the reasoned judgement was prepared and signed by all the Hon'ble Members. As it was not intended to be read in the open Court, the reasons were not delivered but signed unanimously by all the Hon'ble Members. The decision was ultimately uploaded in the website of the NGT on 27-02-2015.
It is the preliminary case of the applicant that as Dr. G. K. Pandey retired on 14-01-2015, the reasons given by the Bench cannot be that of the same Bench which heard the appeal. Even though, the applicant has chosen to raise a point as if no proper hearing was given by saying that, if proper hearing was given error would not have occurred, Mr. Sanjay Parikh, the learned senior counsel appearing for the applicant would fairly submit that he would not press that point. Even otherwise as it would be evident from the record, the hearing started in the appeal on 21-02-2014 which was continued on 10-04-2014, 16-04-2014,17-04-2014, 22-04-2014, 24-04-2014,15-05-2014and 16-05-2014, when the learned counsel for appellant alone was heard, followed by the reply argument which went on for nearly three to four hearings and again the argument of the learned counsel for appellant on 17-12-2014, 18-12-2014,19-12-2014,07-01-2015,12-01-2015 and13-01-2015.Therefore one can never say that proper hearing was not given.
As all the respective counsel appearing for all the parties have agreed that at the first instance, the preliminary issue can be decided by this Bench, with the consent of all the parties, we have agreed hear the said aspect and give our findings on the said preliminary submissions. Mr. Sanjay Parikh, the learned senior counsel appearing for the applicant has made the following submissions:
1) According to him, as per the provisions of the National Green Tribunal Act 2010, the Tribunal is a civil court, and therefore Code of Civil Procedure is applicable and as per rule 23(2) of the National Green Tribunal (Practice &Procedure) Rules 2011 the order shall be pronounced in the open court. According to him the reasons should also have been pronounced in the open court and as it was not done, the same is not in accordance with the rules.
2) According to him till date the copy of the judgement has not been furnished to the appellant, but was uploaded in the website of the NGT on 27-02-2015.The delay is not only causing injustice to the parties, but it is not a judgement in the eye of law. He has also referred to various provisions of the Code of Civil Procedure relating to the judgement, order, pronouncement, signing of the decree etc.
3) The brief order passed on 13-02-2015 in the open court is not a judgement as it does not contain reasons and while discussing to decide the Judgement, there could have been some changes effected.
4) To substantiate his contention that the judgements should be pronounced in the open court, he would rely upon various judgements of the Hon'ble Supreme Court reported in (2009) 17 SCC 308, (1999)8 SCC396, (1969) 1 SCC709 and AIR 1954 SC 194.
Per contra, it is the contention of Mr. Tarun Johri and Mr.A.D.N Rao the learned Counsel appearing for R3 and R4 namely the project proponent and the State of Arunachal Pradesh respectively, that in the light of the admitted position that the hearing in the appeal was elaborate and all the respective counsel were given sufficient time to put forth their submission and it is admitted that the full decision was uploaded on 27 -02- 2015 there is absolutely no miscarriage of justice as the brief order passed on 13 -01- 2015 in the open Court itself has stated that the ' reasons for judgement to follow ' and in fact the reasons relating to the decision have been signed by the all the Hon'ble members unanimously on 13- 01 -2015 itself. It is also submitted that while Code of Civil Procedure is not applicable to the Tribunal only some of the provisions of the Code which are specifically prescribed under s. 19(4) of the National Green Tribunal Act 2010 alone are applicable and therefore according to them the Code relating to judgement and also reference made to the judgements of the Hon'ble Supreme Court by the learned Counsel appearing for the applicant are not applicable. It is their further contention that the NGT Act 2010 as it is seen U/s.21 or in any other place has not referred to the term 'judgement' and it only speaks about the decision, order or award. As the order passed in the open Court on 13- 01- 2015 dismissing the appeal which is decision taken by all Hon'ble members unanimously, the reasoning given on the same day signed by all Hon'ble members is only in addition. Even otherwise, according to them the brief order delivered in open court itself is appealable U/s.22 of National Green Tribunal Act 2010 and therefore the applicant cannot raise the issue of any injustice. They also further submit that actually no prejudice is caused to the applicant. As the National Green Tribunal Act is distinct and different from the Code there is no necessity for drafting decree in respect of decision taken by the Tribunal since there is no judgement contemplated. According to them even if the NGT has not issued copy of the decision in the appeal dated 13- 01- 2015, at any time on receipt of the copy, appeal can be preferred and in the light of undertaking given on behalf of project proponent, no serious prejudice has been caused to the applicant. They would finally submit that in as much as the decision in the appeal is elaborate running to more than 90 pages dealing with every one of the issues after hearing all the parties in detail, there is no violation of principle of natural justice. Therefore it is their submission that the preliminary submission has to be rejected.
After hearing both the learned Counsel for applicant as well as respondents at length restricting their arguments only in respect of the preliminary submissions, we have decided to pass appropriate orders only in respect of the issue at this stage namely, as to whether the preliminary submissions made by the applicant about the validity of the judgement in appeal dated 13 -01 -2015 is sustainable?
The indisputable facts stated above, about the number of hearings shows that there has been elaborate hearing of the argument by both the sides which of course now conceded by the learned counsel appearing for the applicant and therefore there is no violation of natural Justice which is the guiding principle of National Green Tribunal as per s. 19 (1) of National Green Tribunal Act 2010 which states as follows:
"19(1) the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure 1908 but shall be guided by the principles of natural Justice".
The further fact on record is that the Tribunal has passed an order in the open Court on 13-01- 2015 as narrated above unanimously deciding that there are absolutely no merits on all grounds raised by the learned counsel appearing for the appellant and therefore the appeal stands dismissed with no cost stating that the reasons for judgement to follow. It is also on record that the reasons which are elaborately dealt with has been signed by all Hon'ble members constituting the Bench on the same day, namely 13 -01- 2015. It cannot be said and it is not also the case of applicant that the reasons were signed by one of the Hon'ble expert members Dr. G. K Pande after the date of his retirement namely 14- 01- 2015. In as much as in the order pronounced on 13 -01 -2015, the appeal has been dismissed by unanimous decision of all the Hon'ble members especially when the matter was heard for a long time, there is no question of changing the decision after deliberation especially when the reasoning also has been signed by all the Hon'ble members unanimously on the same day. In our view this said procedure does not vitiate the validity of the decision. It is relevant to record at this point of time that this appeal has been pending for a long number of years having been transferred from the National Environment Appellate Authority and heard by National Green Tribunal by itself at its different Benches on many occasions without reaching any finality.
The National Green Tribunal Act 2010, U/s.19 not only, does not bind the Civil Procedure Code on the Tribunal, but also enables to have power to regulate its own procedure. Even the rules of evidence contained in the Indian Evidence Act, 1872 are not binding on the Tribunal. However, for the purpose of effective discharge of the functions of the Tribunal, the Act entrusts certain powers of Civil Court while trying a suit categorizing the following namely:
"19 (4) ......
a. summoning and enforcing the attendance of any person and examining him on oath;
b. requiring the discovery and production of documents ;
c. receiving evidence on affidavits;
d. subject to the provisions of s. 123 and s. 124 of Indian Evidence Act 1872, requisitioning any public record or document or copy of such record or document from any office;
e. issuing commissions for the examination of witnesses or documents;
f. reviewing its decision;
g. dismissing an application for default or deciding it ex parte;
h. Setting aside any order of dismissal of any application for default or any order passed by it ex parte;
i. pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard , on any application made or appeal filed under this Act;
j. pass an Order requiring any person to cease and desist from Committing or causing any violation of any enactment specified in Schedule 1;
k. Any other matter which may be prescribed".
Therefore a cursory reading of the said provision shows that except the above specified powers vested by the Code on the Civil Courts, no other provisions of the Code are binding on the National Green Tribunal.
S.20 of the National Green Tribunal Act again states in no uncertain terms that while passing order or decision or award, the Tribunal is bound by three principles namely the principles of Sustainable Development, The Precautionary Principle and the Polluter pays Principle. While the decisions are to taken by majority of members which is binding, s.22 of National Green Tribunal Act, 2010, enables any person aggrieved by any award, decision or order of the Tribunal to file an appeal to Supreme Court on any one or more of the grounds specified U/s.100 of Civil Procedure Code, 1908 namely substantial question of law. The National Green Tribunal (Practices and Procedures) Rule, 2011, while contemplating that the Tribunal shall hear any application or appeal consisting of at least a Judicial and an Expert member, states under Rule 23 that every order of the Tribunal shall be signed and dated by the members constituting the sitting of the Tribunal which pronounce the order, but it no doubt states that the order shall be pronounced in the open Court. It is significant to note that in the said Rule the terms decision and award have not been mentioned. Rule 28 (2) makes it clear that in case where the parties are duly represented by an Advocate or authorised agent, require copy of any document, proceeding or order, the same shall be supplied on such terms and conditions and on payment of such fees and cost as may be fixed by the general or special order. Therefore it is clear that when the operative portion of the decision was pronounced in the open Court on 13- 01 -2015, and the decision with reasoning has also been signed by Hon'ble members on the same day, merely because the applicant is unable to get the certified copy of the decision, the decision or order in our view cannot be held as nullity.
A comprehensive reading of the Act as well as the Rule makes it a complete code by itself. There is definitely merit in the contention raised by the respondents that the judgement as defined under the code is not called for from the Tribunal. It cannot be said to be an accidental omission but appears to be deliberate by the law makers, may be due to the reason that no decree is called for under the Act. The judgements referred to by Mr. Sanjay Parik are relating to either the term judgement under the Civil Procedure Code or other provisions of the Code apart from Criminal Procedure Code 1973. In the Judgement of the Hon'ble apex Court relied upon by the learned Counsel for the applicant in K. V. Rami Reddi v Prema, reported in (2009) 17 SCC 308 it was a case where in a suit for specific performance, the Trail Judge without dictating judgement to stenographer has simply made an endorsement in the plaint docket sheet that plaintiff in the suit was not entitled to relief of specific performance of sale agreement but was entitled to refund of Rupees 200000/-. It was on the said factual matrix, it was held by the Hon'ble Supreme Court, that it was not a mere procedural irregularity, but on the facts of the present case the decision was rendered in open court on 13- 01- 2015 and the reasons were also signed on same day by all the Hon'ble members. The administrative delay either in uploading in the official website of NGT or in supplying the certified copy of decision or order cannot render a decision a nullity.
Again in our considered view the judgement relied upon by the learned Counsel for applicant rendered by the Hon'ble Court in Smt. Swaran Lata Ghosh v H. K Banerjee and Others reported in 1969 (1) SCC 709 is not also applicable to the facts of the present case. Again, the judgement in Balraj Taneja and Another v Sunil Madan and Another reported in (1999) 8 SCC 396 relates to a case were a decree came to be passed by the trial court without going into the merits of the case but on the ground that written statement was not filed and the defendant was set ex parte.
On the factual matrix there is no prejudice caused to the applicant not only because there is an undertaking on behalf of the respondents in respect of diversion of forest land but also because of the reason that the applicant is not deprived of approaching the higher Appellate Forum. It has to be reiterated that any delay or pendency of application before the Tribunal for certified copy of the decision is certainly not detrimental to the interest of the applicant. Therefore looking into any angle we have no hesitation to hold that there is absolutely no merit in the contentions raised on behalf of the applicant regarding the preliminary submission. In that view of the matter, the preliminary submission made on behalf of the applicant stands rejected. No cost.
Post to the review application for further hearing on Chennai Dated