2018 (10) TMI 1782 - HC - Indian Laws

Destruction of forest land due to the encroachment - principal contention as urged by the learned counsel for the petitioner is that both the orders are passed by the NGT without hearing the petitioner and now the Forest Department is taking action to demolish the petitioner s construction by issuance of the impugned notice dated 20.11.2017 implementing the said orders passed by the NGT - HELD THAT - As India was a party to the decisions taken at the United Nations conference on the Human Environment held at Stockholm in June 1972 calling upon the States to take appropriate steps for the protection and improvement of human environment. A decision was taken in the United Nations Conference on Environment and Development held at Rio de Janeiro in June 1992 in which India participated calling upon the States to provide effective access to judicial and administrative proceedings including redress and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage. In the judicial pronouncements in India the right to healthy environment was construed as a part of the right to life under Article 21 of the Constitution. It was therefore considered expedient to implement the decisions taken at the aforesaid conferences and to have a National Green Tribunal in view of the involvement of multidisciplinary issues relating to environment. The NGT Act is thus a special legislation which provides for establishment of the National Green Tribunal for the effective and expeditious decisions in cases relating to environmental protection and conservation of forest and other natural resources including enforcement of legal rights relating to environment and grant of relief of compensation and damages to persons and property and for matters connected therewith and incidental thereto as the Preamble of the Act would stipulate. The Administrative Tribunal Act 1985 does not contain a specific provision conferring a right to appeal to the Supreme Court as provided under section 22 of the NGT Act. In fact there is no provision for a statutory appeal against the orders of the Administrative Tribunal. In L.Chandrakumar 1997 (3) TMI 90 - SUPREME COURT the Supreme Court has held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is part of the basic structure of the Constitution. This is not a extraordinary case where indulgence can be granted to the petitioner by entertaining this petition under Article 226 of the Constitution. The record reveals that the petitioner had filed a civil suit for the same cause of action and could not succeed in getting any reliefs - Further it was always open to the petitioner to approach the division bench of the NGT and seek appropriate reliefs in case the petitioner felt that the petitioner was not heard. The interim protection granted by this Court for a period of four weeks to enable the petitioner to avail appropriate remedy as available in law is continued - petition dismissed.

Summary

Issues Involved:
1. Ownership and encroachment of forest land.
2. Legality of orders passed by the National Green Tribunal (NGT).
3. Jurisdiction of a single member of NGT.
4. Maintainability of the writ petition in light of an alternative remedy.

Detailed Analysis:

1. Ownership and Encroachment of Forest Land:
The petitioner, a charitable trust, claims ownership of land in Pune, which is disputed by the State Government. The State Government contends that Gat No. 78 is a reserved forest as per a notification dated June 26, 1890, under the Indian Forest Act, 1878. The petitioner is accused of encroachment and illegal construction on this forest land. The petitioner had earlier filed a civil suit for permanent injunction, which did not result in any temporary relief.

2. Legality of Orders Passed by the NGT:
The petitioner is aggrieved by the NGT orders dated 26.5.2017 and 23.1.2018, which directed the removal of encroachments from forest lands. The NGT order dated 26.5.2017 mandated the removal of encroachments within three weeks and the restitution of the environment. The subsequent order dated 23.1.2018 involved compliance checks and directed further inspection and reporting by the Chief Conservator of Forests and the District Collector.

3. Jurisdiction of a Single Member of NGT:
The petitioner contends that the order dated 23.1.2018 was passed by a single member of the NGT, which is against Rule 5 of the NGT (Practice and Procedure) Rules, 2011. Rule 5(1) stipulates that applications or appeals should be heard by a bench consisting of at least one Judicial and one Expert Member. The court noted that the single member was considering compliance of an earlier order and not a new application or appeal, thus the jurisdictional challenge was not entirely applicable.

4. Maintainability of the Writ Petition in Light of an Alternative Remedy:
The court examined the maintainability of the writ petition under Article 226 of the Constitution, given that Section 22 of the NGT Act provides for an appeal to the Supreme Court. The court referred to various precedents, including the Supreme Court's decision in L. Chandra Kumar vs Union of India, which upheld the High Court's power of judicial review but emphasized that statutory remedies should be exhausted first. The court noted that the petitioner had not approached the NGT for relief before filing the writ petition and had an alternative remedy under Section 22 of the NGT Act.

Conclusion:
The court dismissed the petition, stating that the petitioner should have exhausted the alternative remedy of appealing to the Supreme Court under Section 22 of the NGT Act. However, the court extended interim protection for four weeks to allow the petitioner to seek appropriate legal remedies. The decision underscores the principle that statutory remedies should be pursued before invoking the High Court's jurisdiction under Article 226.