Goa Foundation & Anr vs. Union of India & Ors.

 
Judicial and Expert Members: Mr. Justice Swatanter Kumar, Mr. U. D. Salvi, Prof. A. R. Yousuf, Mr. B. S. Sajwan
 
Keywords: Environmental Clearance, Western Ghats, res judicata, felling of trees, Forest Clearance
 
Application dismissed
 
Dated: 13 January 2015 
Original Application No. 26 of 2012, titled ‘Goa Foundation &Anr. Vs. UOI &Ors.’ was filed before the Tribunal with the prayer that the respondents be directed not to issue any Environment Clearance under the Environmental (Protection) Act, 1986 and the Pollution Control Boards concerned should not issue consent under the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981. It was the case of the applicant that various States had demarcated areas as Eco Sensitive Zone (ESZ) I and Eco Sensitive Zone (ESZ) II within the Western Ghats Area to protect and preserve the Western Ghat in the framework as enunciated by the Western Ghats Ecology Expert Panel (WGEEP) Report dated 31 August 2011.
It was noticed in the Goa Foundation judgment the MoEF had issued directions under Section 5 of the Act of 1986 on 13th November, 2013 for providing immediate protection in relation to Western Ghats to maintain its environmental integrity and tranquillity. It was for MoEF to consider the rival contentions of various States and objections while declaring and demarcating the eco-sensitive areas of Western Ghats. To the draft Notification, States were required to file their responses before the MoEF, which thereafter was to proceed in accordance with law. Thereafter, the Applicants filed the present application with the following prayers:
1) “Stay the operation of order dated 10th December, 2014 passed by Deputy Commissioner and District Magistrate of Kodagu District;

2) Declare the order dated 10th December, 2014 passed by Deputy Commissioner and District Magistrate of Kodagu District, in violation of order dated 25th September, 2014 passed by this  Tribunal in Original Application No. 26 of 2012 and in violation of Section 8 of Karnataka Tree Preservation Act, 1976;
3) Declare the order dated 10th December, 2014 passed by Deputy Commissioner and District Magistrate of Kodagu, District, Madikeri, Karnataka in violation of  Supreme Court’s order dated 12th December, 1996 passed in W.P. (C) No. 202 of 1995;
4) That stay the felling of trees till the NBWL Clearance is obtained; and

5) Pass any other such order(s)/direction(s) as the Tribunal deem proper in present facts and circumstances.”
It was the case of the applicants that the Deputy Commissioner and the District Magistrate of Kodagu District, Madikeri, Karnataka, on 10th December, 2014, passed an order in relation to Transmission Line project from Kozhikode (in Kerela) to Mysore (in Karnataka) under Section 68 of the Electricity Act, 2003 read with Sections 10 & 16 of the Indian Telegraph Act, 1885 permitting felling of 1358 trees within the Margolly Estate. According to the applicant, the order of the Deputy Commissioner was in violation of the order of the Tribunal dated 25th September, 2014 in the case of Goa Foundation. Further, it was pleaded that the said order of was in total ignorance and violation of Section 8 of the Karnataka Preservation of Trees Act, 1976, which imposes restriction on the felling of trees, and of the order of  Supreme Court dated 12th December, 1996, passed in the case of T.N. Godavarman v. Union of India &Ors., (W.P (C) No. 202/1995), the area being a ‘forest land’.
The apprehension of the applicant was that, in furtherance to the order of the Deputy Commissioner, a total 50,000 trees shall be felled in private lands in the VirajpetTaluk of District Kodagu, Karnataka, which is an Ecologically Sensitive Area of the Western Ghats and thus, the order dated 10th December, 2014 shall be very prejudicial to the environment.

Upon notice, the respondents appeared and contended that the present application was not maintainable on the principles of res judicata, as the pleas in Original Application No. 414 of 2013 before the Southern Zone Bench of this Tribunal and even before the High Court of Karnataka in Writ Petition No. 23456 of 2013, have since been decided.

According to the Tribunal, firstly, the application was not maintainable and secondly, the Tribunal should not exercise its jurisdiction in the facts and circumstances of the present case, for the following reason:
(a) Original Application No. 26 of 2012, in which the M.A. No. 894 of 2014 had been filed, had already been disposed of. Original Application having been finally concluded, the application could not lie before the Tribunal. Furthermore, as far as the violation of the judgment of the Tribunal passed in Original Application No. 26 of 2012 is concerned, The Tribunal opined that there was no violation of the directive contained in paragraph 14 of the judgment. There, it had been observed that the MoEF was to maintain environmental tranquility of the areas under consideration and should not allow irreversible alteration of the areas by granting Environmental Clearance or by permitting activities which would have an adverse impact on the eco-sensitive areas. In the present case, the Forest Clearance and permission for change of land use, in relation to ‘Forest Area’ or carrying on of non-forest activity, had been granted on 1stMarch, 2012, i.e. even prior to the pronouncement of the judgment in O.A. No. 26 of 2012. In light of this, there was no violation of the directions of the Tribunal.
(b) The applicant had specifically prayed that order dated 10th December, 2014, i.e. the impugned order, was in violation of the orders of the Tribunal and therefore, its operation should be stayed. Section 16 provides for appeals to the Tribunal. Admittedly, the order dated 10th December, 2014, had been passed under Section 68 of the Electricity Act, 2003 read with Sections 10 and 16 of the Indian Telegraph Act, 1885. These acts are not made appealable in terms of Section 16. Furthermore, none of these Acts find a place in Schedule I to the NGT Act, that provides the enactments, in relation to which, environmental disputes are to be dealt with by the Tribunal.
(c) The Learned Counsel for the applicant contended that the present application raised a substantial issue relating to environment and therefore the Tribunal should step in and pass appropriate orders on merits. However, even Section 14 contemplates that the dispute should be relating to a substantial question relating to environment or enforcement of a legal right relating to environment and should arise in relation to implementation of any or all of the enactments specified in Schedule I to the NGT Act.
(d) The applicant had raised a challenge not only to the Forest Clearance dated 1^st March, 2012 in Original Application No. 414 of 2013, but had also raised the question of felling of 50,000 trees, as a result of laying of this transmission line and its impact on the ecology and environment of the Eco- Sensitive areas in village Kozhikhode in District Kodagu. All these questions were deliberated and commented upon by the Southern Zone Bench of the National Green Tribunal in its Judgment dated 7^th July, 2014, in the case of ‘Coorg Wildlife Society. Though, finally the application was dismissed as being barred by time and latches the applicant had preferred a civil appeal before the Supreme Court which was pending for hearing.
(e) The issues and controversies raised in the present application had been specifically and materially raised and/or ought to have been raised in previous proceedings (Original Application No. 414 of 2013), which have been finally decided even inter se the parties. The present application was certainly hit by the principles of res judicata and/or constructive res judicata. Keeping in view the pendency of the appeal before the Supreme Court, in no event the present application could lie before the Tribunal.
(f) The impact of grant of Forest Clearance to the Project Proponent would be a permission to convert the land use from forest to non-forest activity. On the strength of the granted permission, the project proponent would be entitled to carry the project activity in the reserved forest area and it had to be understood that authorities were conscious of the eco-sensitivity of the area while granting such permission. Attempt of the present applicant was to indirectly challenge the Forest Clearance dated 1March, 2012 which has already been finally dealt with and disposed of vide Judgment dated 7th July, 2014.

The application was neither maintainable nor was a case where this Tribunal should exercise its jurisdiction. Only the question of maintainability of the application was dealt with and therefore, this order would not, affect the right of the applicant to take such other appropriate remedy as may be available to them for challenging the order dated 10 December, 2014, in accordance with law. Hence the application was dismissed without any order as to costs.