Shri S.N. Somasekhar vs State Of Karnataka And Ors

This is an application filed by the applicant rising substantial questions relating to environment which arise out of the statutory obligation of the respondent Government authorities to take into consideration the huge impact of the Yettinahole Water Diversion Project in Karnataka upon the biodiversity in the Western Ghats and the interest of local community at large who will be affected by it and to conduct a detailed impact assessment as per the provisions of the Biological Diversity Act, 2002 and the Environment Impact Assessment Notification, 2006 (EIA Notification,2006).

The applicant states that theYettinahole Water Diversion Project has been proposed by the Karnataka Government at a cost of more than Rs. 8,000 crore in the biodiversity hotspot of the Western Ghats with diversion of water from east flowing tributaries of the River Nethravathi to the districts in the west. The project proposes massive diversion of water to the tune of 24.01 tmc all round the year involving submersion of land to an extent of 1200 ha including 2 villages and nearly 600 ha of forest land. The project also aims at generation of hydropower to the tune of 125 MW and irrigation of more than 10,000 ha command area.

The project will have widespread impact upon the biodiversity, critical wildlife habitats, river morphology and as a consequence, the people who are dependent on these rivers and the biodiversity for their livelihood will get affected. No detailed study has been made on any of these crucial aspects and neither EIA has been done nor forest clearance applied for.

The applicant herein filed a writ petition in W.P.No. 12307/2014 before the Hon'ble High Court of Karnataka challenging the diversion project and by an order dated 2nd June, 2014, the applicant was allowed to withdraw the writ petition and seek alternative remedy before this Tribunal.

The applicant herein is a Civil Engineer by profession claiming to be an activist for protection and conservation of environment and forest land and has brought forth this application seeking a direction that no construction work be initiated with respect to the Yettinhole Diversion Project till a comprehensive impact assessment is undertaken in accordance with the Biological Diversity Act, 2002 and the Environment (Protection) Act, 1986 and based on the Precautionary Principle.

On notice all the respondents entered appearance and only the 3rd respondent has filed the reply. The contesting 3rd respondent raised a preliminary objection on the maintainability of the application on the question of limitation. Hence, at this stage the following questions were formulated for consideration by the Tribunal:

Whether the application is maintainable or not since it is barred by time as contended by the third respondent.

Whether the applicant is entitled for the interim order of stay on the construction activities of the Yettinhole Diversion Project as asked for.

Points 1 and 2:

Questioning the maintainability of the application, the learned counsel for the 3rd respondent Shri Navin R. Nath would contend that the application filed by the applicant for giving direction that the construction work of the Yettinhole Diversion Project should be prohibited till a comprehensive impact assessment is carried out, is barred by limitation under section 14 (3) of the National Green Tribunal Act, 2010 (NGT Act, 2010) for the reason that in essence it seeks to challenge the approval granted by the Central Government dated 28.03.2013 based on the recommendation made by the Expert Appraisal Committee (EAC) for River Valley and Hydroelectric Projects constituted under the Environment Impact Assessment Notification, 2006. The applicant filed the W.P.No. 12307 of 2014 challenging the aforesaid approval granted by the Central Government before the Hon'ble High Court of Karnataka on 11.03.2014 which permitted the same to be withdrawn with liberty to invoke alternative remedies. It is pertinent to point out that the writ petition itself was filed beyond the period of six months from the date of issuance of the said communication by the Central Government. Apart from that, the order dated 28.03.2013 was a statutory approval and if aggrieved, the applicant should have appealed under section 16 (h) of the NGT Act, 2010. The order passed by the Central Government and the recommendation of the EAC which formed basis of the order were in public domain. But, they were not questioned by the applicant either in the writ petition or in the present application. Hence, the benefit of section 14 of the Limitation Act, 1963 is also not available to the applicant. The relief of the present application is couched ingeniously in a manner to challenge the said decision of the Central Government made under the EIA Notification, 2006 and hence on the question of limitation, the application is not maintainable.

Answering the above contention, the learned counsel for the applicant would submit that the application is well within the time prescribed under the NGT Act, 2010. The High Court in its order dated 02.06.2014 has granted liberty to the applicant to withdraw the writ petition and file a separate proceedings before the NGT. The applicant further contended that there is a continuing violation of Biological Diversity Act, 2002. Hence, the contention putforth by the learned counsel for the 3rd respondent has got to be rejected.

On the reasons and grounds adduced as set out in the application, the applicant has sought a direction from the Tribunal that the construction work of the Yettinhole Diversion Project should not be allowed to be carried on till a comprehensive impact assessment is undertaken in accordance with the Biological Diversity Act, 2002, E.P Act, 1986 and Precautionary Principle.

It is true that the applicant originally filed a writ petition in W.P.No. 12307 of 2014 before the Hon'ble High Court of Karnataka whereby the following order was made:

"1. After arguing at some length, the petition was sought to be withdrawn with a view to take up appropriate alternative remedy by approaching the National Green Tribunal established under the National Green Tribunal Act, 2010.

Permission being granted, the petition is disposed of as withdrawn".

After withdrawing the said application with liberty to take up the matter by approaching the Tribunal, the applicant has filed the present application under section 14 of the NGT Act, 2010 raising a number of substantial questions relating to environment.

Speaking on the jurisdiction and powers of the Tribunal, section 14 of the NGT Act, 2010 reads as follows:

Tribunal to settle disputes. - (1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I.

(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass orders thereon.

(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for dispute first arose.

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

The very reading of the above provision would make it clear that the Tribunal is vested with the jurisdiction and powers to settle the disputes arising over all civil cases where a substantial question relating to environment is involved which would include enforcement of any legal right relating to environment if the application is filed within the prescribed period of limitation. It is also made clear that such a question should arise out of implementation of enactments specified in Schedule I of the NGT Act, 2010. It is true that in the instant application, the applicant has raised a number of substantial questions connected to environment and concerned with ecology. It is the pleaded case of the applicant that the project in question requires a comprehensive impact assessment in accordance with the provisions of Biological Diversity Act, 2002 and E P Act, 1986 two enactments enlisted under Schedule I of the NGT Act, 2010.

Pointing to section 14 (3) of the NGT Act, 2010, the learned counsel for the 3rd respondent would submit that the application is barred by time and that it is an indirect challenge on the approval granted by the Central Government dated 28.03.2013 based on the decision of the EAC for River Valley and Hydroelectric Projects constituted under EIA Notification, 2006.

It is true that no application for adjudication of disputes under section 14 of the NGT Act, 2010 can be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such disputes first arose. If the applicant was prevented by sufficient cause for filing the application within that period, the Tribunal can allow the application to be filed within a further period not exceeding sixty days.

Obviously, the applicant who challenged the approval granted by the Central Government dated 28.03.2013 based on the decision taken by the EAC by a writ petition before the High Court withdrew the same with liberty to approach the Tribunal for alternative remedy. It is pertinent to point out that the said writ petition was disposed on 02.06.2014 by the High Court with liberty to approach the NGT. According to section 14 (3) of the NGT Act, 2010 stated supra the applicant should have filed the application within six months from the day when the first cause of action arose. It is not in dispute that the Central Government granted the approval for the project on 28.03.2013 which was based on the decision taken by the EAC for River Valley and Hydroelectric Projects constituted under the EIA Notification, 2006. Even the W.P.No. 12307/2014 was filed before the Hon'ble High Court of Karnataka only on 11.03.2014. At this juncture, it remains to be stated the NGT Act, 2010 came into force on 02.06.2010 and the NGT became functional from 18th October, 2010. Hence, it would be quite clear that the applicant has not approached the NGT within six months from the date of approval granted by the Central Government for the project in question on 28.03.2013 while the NGT was functional on that date. On the contrary, the applicant has approached the Hon'ble High Court of Karnataka challenging the approval by filing W.P.No. 12307/2014 on 11.03.2014 and got it withdrawn with liberty to approach the NGT by an order dated 02.06.2014.

The applicant who is a post graduate and claims to be a Civil Engineer and also an activist in the environmental field cannot be allowed to say that he did not have the knowledge of either the NGT Act, 2010 or the establishment of NGT. Even assuming that 02.06.2014, the date of order of the High Court, Karnataka referred to above is taken as the commencement of cause of action, the application should have been filed within a period of six months. The applicant has applied for the copy of the order which was delivered on 09.06.2014, but has filed the application before the Tribunal on 26.12.2014 which was beyond the period of six months.

According to the learned counsel for the applicant, the applicant has asked for a direction that the construction activities should not be initiated with respect to the project until a comprehensive impact assessment is undertaken in accordance with the provisions of the Biological Diversity Act, 2002 and E P Act, 1986 and Precautionary Principle. Hence, there is no impediment in law to consider and answer those substantial questions relating to environment and that too why those questions arise out of implementation of the provisions of the said two enactments out of the enactments listed out in Schedule I of the NGT Act, 2010. In fact, the Tribunal indisputably has jurisdiction to decide those issues Apart from that, the W.P.No. 12307/2014 filed before the Hon'ble High Court of Karnataka was disposed on 02.06.2014 granting permission to the applicant to withdraw the same with a view to approach the NGT for appropriate alternative remedy.

It is true that it was neither the case of the applicant that there was any delay nor has he filed any application to condone the delay. All the above would be clearly indicative of the fact that the attempt by the applicant to file a writ petition before the Hon'ble High Court of Karnataka and withdrawing the same to approach the Tribunal was only with a view to circumvent the period of limitation as provided under the NGT Act, 2010. As rightly pointed out by the learned counsel for the contesting 3rd respondent, having failed to file the application in time, the applicant cannot be permitted to plead that he can prosecute the application before the Tribunal since he has not challenged the order dated 28.03.2013 of the Central Government.

The reading of the averments and the grounds set out in the application are clearly indicative of the fact that the applicant is actually challenging the order of the Central Government dated 28.03.2013 pertaining to the Yettinhole Diversion Project. Being conscious of the fact that the appeal under section 16 (h) of the NGT Act, 2010 assailing the order dated 28.03.2013, which is a statutory approval for the project, would be defeated by law of limitation, the applicant has cleverly sought for a direction to stop the construction activities of the said project in order to circumvent the Law of Limitation, 1963 which in the considered opinion of the Tribunal cannot be permitted.

In view of the above, the points are answered holding that the application is barred by the limitation as prescribed under the NGT Act, 2010. Hence, the application is dismissed as not maintainable.

In view of the dismissal of the application as not maintainable, the question of granting interim relief as prayed for by the applicant does not arise for consideration. No cost.