Shri Hazi Ariff vs State of U.P. & Ors

The matter has been taken up in pursuance of order of the Hon'ble Supreme Court dated 22.10.2021 in Civil Appeal Nos. 2700, 2727, 2927 and 3076/2020, M/s. Tata Steel BSL Limited v. Hazi Arif and Others., setting aside earlier order of this Tribunal on the ground of lack of opportunity and remanding the matter for fresh decision after due opportunity.

This Tribunal vide order dated 26.02.2020 dealt with the execution of its earlier order dated 07.10.2016 against encroachment of green belt and storm water drain-Sahibabad Drain No. 1 of Ghaziabad. The said order was based on consideration of report dated 23.04.2014 filed by a Committee constituted by the Tribunal finding encroachments of green belt, close to storm water drain at Vaishali Zone -5, Ghaziabad. The execution application was dealt with on consideration of further report dated 09.10.2017 of an Expert Committee appointed by this Tribunal.

The alleged encroachers/violators preferred appeals before Hon'ble Supreme Court on the ground that they did not have adequate opportunity before the Tribunal, which have been allowed and matter remitted back to this Tribunal to be dealt with from the stage of submission of report dated 23.04.2014. The affected parties were given liberty to file objections to the report. The order of the Hon'ble Supreme Court is reproduced below:-

"The challenge in the present appeals is to an order passed by the National Green Tribunal (in short, "the NGT") on 26.02.2020. The learned NGT held that in execution proceedings, the order passed by the Tribunal on 07.10.2016 cannot be disputed.

The NGT has appointed an Expert Committee on 03.03.2014 under the Chairmanship of Ms. Parul Gupta, Advocate. The said committee submitted report on 23.4.2014. The NGT passed an order on 7.10.2016 whereby the Respondent Ghaziabad Development Authority was directed to remove all such encroachments on green belt area as per GMPD 2021 in Vaishalli Zone -5 in accordance with law. The order dated 7.10.2016 is being treated as final order though the report of Committee of Ms. Parul Gupta was accepted by NGT after giving an opportunity of hearing to the affected parties.

Another Expert Committee was ordered to be constituted comprising of Professor C.R. Babu Centre, Professor for Environment Management of degraded ecosystem, School of Environment study University of Delhi, Dr. Brij Gopal, Professor JNU, Professor A.K. Gosain Professor of Civil Engineering IIT, Delhi to carry out study of Sahibabad drain No. 1 Ghaziabad. The said Committee had given its report on 09.10.2017.

The appellant and other affected parties filed applications for impleadment in the Original Application pending before the NGT before it passed an order on 7.10.2016. Objections to the Report were also submitted. However, the NGT, in the impugned order, held that "as an executing court, the jurisdiction of the Court is limited as it cannot go behind the original order passed in respect of which execution proceedings have been initiated."

We find that the entire basis of the order of the NGT is the Report of the Expert Committee dated 23.4.2014 leading to the alleged executable order dated 7.10.2016. Such Report was never accepted on the basis of which any executable order was passed by the NGT. The argument raised that such report was taken on record does not mean acceptance of report. Still further none of the affected parties, such as the appellants were before the NGT and no order could be passed without hearing the affected parties.

Consequently, we set aside all proceedings subsequent to the submission of the Report dated 23.4.2014. The affected parties are given liberty to file objections to the report so submitted. It is only thereafter, an order can be said to have been passed by the NGT, which can be said to be an executable order.

Consequently, the appeals are allowed. The order passed by the NGT on 26.02.2020 is set aside. The matter is remitted back to the NGT from the stage of submission of the Report dated 23.4.2014. The NGT shall decide all questions of law and fact after hearing the affected parties in accordance with law."

Learned Counsel for the applicant submitted that inspite of liberty given by the Hon'ble Supreme Court no objection has been filed to the reports and violations have been found, supported by tangible material. Accordingly, the report be accepted and directions issued for protection of environment under Section 15 of the NGT Act, 2010.

Learned Counsel for the alleged encroachers/violators seek further opportunity to file their objections.

In view of order of Hon'ble Supreme Court, we permit filing of any further objections/submissions/documents by 05.01.2022.

List for final hearing on 11.01.2022.

Since, the matter is to be dealt with from the stage of 23.04.2014 report, and execution application is for execution of order dated 7.10.2016, which no longer survives, O.A. be listed for consideration and final disposal. Execution application be treated as closed in the light of order of Hon'ble Supreme Court. I.A. No. 172/2021 also stands disposed of.