By: Saurabh Shrivastava
|NAME OF THE CASE||Ms. Betty C. Alvares v. The State Of Goa Ors|
|CITATION||Misc. Application No. 32/2014|
|DATE OF THE CASE||14th February 2014|
|APPLICANT||Ms. Betty C. Alvares|
|RESPONDENT||The State Of Goa Ors|
|COURT||National Green Tribunal|
|BENCH/JUDGE||Justice V.R. Kingaonkar( Judicial officer) , Dr. Ajay A. Deshpande (Expert Member)|
|STATUTES/ CONSTITUTION||Constitution of India, National Green Tribunal Act, Environmental (Protection) Act|
|IMPORTANT SECTIONS/ ARTICLE||Article 21 of the Indian Constitution, Section 2(j), 14, 15, 18 of NGT Act|
An intrinsic part of human rights is the right to a healthy environment, right to live a healthy life. It must be in tandem with the right to food, right to water and right to dignity. Encroaching these rights could cause substantial loss of a man enjoyment of life. This right creates an obligation on states to regulate and enforce environmental law, to keep in check pollution levels, to provide justice and protections for communities harmed by environmental problems And if it’s necessary for the greater good, then make good with the affected party. National Green Tribunal Being statutory body dispenses with any grievances by the aggrieved person in relation to the environment or natural resource. But to come within the ambit of its jurisdiction, there must be shown substantial question relating to environment or community at large is affected or likely to be affected by such action. Judiciary has time and again interpreted PIL in relation to the environment with broad interpretation to safeguard the interest of the public.
Goa is known for its beaches, from stretches of baga and palolem to fishing villages of agonda. Goa has always been a tourist favourite spot for its ambience and beaches. Development by humans has mostly interfered with nature from deforestation to industrialization. The greed of humans has been so far-fetched that we try to expand everything to as much as we can. But in the process, we might encroach into others rights. This was the main reason why the legislature felt the need for an adjudicatory body to strike a balance between states action and public interest.
Background of the case
The National Green Tribunal Act has been established on 18.10.2010 under National Green Tribunal Act for effective and expeditious disposal of cases relating to the environment and conservation of forests and other natural resources including enforcement of legal rights relating to the environment and giving relief compensation for damages to person or property and matter connected with or incidental to. Its Constitution has reduced the burden of litigation in court and assist in speedy adjudication of environmental issue
Facts of the case
Ms. Betty C. Alvaris, an aged woman, returned to Goa from the USA as NRI. She had spent her childhood in Goa where beauty and greenery have made her feel at home. But when she returned to her hometown, she saw that Goa’s natural beauty and the scenic view had been substantially eroded and lots of illegal construction were being carried out. She took it as her duty and filed a Complaint to the Goa Coastal zone of Candolim. The averments in the Application go to show that her complaints were duly inquired and the Authorities had found substance in the complaints but had not taken affirmative action.
The applicant further filed a writ petition in the high court of Bombay Goa bench. The Hon’ble High Court of Bombay Bench at Goa by order 23.10.2012 transferred the writ petition to the national green tribunal.
Order of transferred read as
Parties agree that given the judgement of the Supreme Court, the matter is liable to be transferred to the national green tribunal. It’s isn’t open to the high court to consider the objection relating to the writ petition, it is further clarified that all applications, including for intervention stand transferred.
So it’s clear that parties had agreed to transfer the matter to the national green tribunal. And it can also be discerned that objections were left with for consideration by the NGT. Respondent in a response filed a misc. application in the national green tribunal.
1. Whether a foreign national can file a Writ petition?
2. Whether a person who hasn’t suffered substantial loss or damage due to damage caused to the environment or violation of CRZ regulation by the acts of the respondent could file an application??
3. Was the application barred by limitation and liable to be dismissed?
Arguments by applicant
1. Article 21 guarantees the right to life to a person and it’s not restricted to the only citizen. Article 21 can be interpreted to guarantee a dignified life i.e. pollution free air. And also according to section 2(j) of the national green tribunal act “person” word is used, therefore the nationality of the aggrieved person became irrelevant. Therefore it’s needless to say that applicant has the locus standi to file a writ petition. It is clear in the writ petition that’s the applicant has filed another writ petition and contempt application.
2. Applicant before filing the said petition, has duly inquired the authorities and it can also be established that authorities had found substance in the complaint but prefer to remain complacent.
3. Respondent had raised illegal construction and encroached upon sea beaches as well as government properties, also blatantly violated CRZ regulation. Therefore, the applicant sought the demolition of illegal construction immediately
4. Since the application is transferred from Hon’ble high court, the limitation is not open to objection and therefore the misc. application of respondent should be rejected.
5. Applicant has exhausted all remedies before approaching the high court, therefore the objection of limitation became immaterial.
Arguments by the respondent
1. Since the applicant is a foreign national and do not have locus standi, therefore her application should be dismissed.
2. Even if the application became maintainable, it’s should be dismissed as its sheer violation of section 14 of the NGT act which clearly states that application should be filed with 6 months from the date on which “cause of action” arises
3. According to article 18 of the NGT act says that the applicant must suffer any injury or loss of property. But applicant didn’t sustain any such injury or loss
4. According to Section 15 of the NGT Act, an applicant cannot claim any compensation, restitution since the application is not filed within 5 years from the date the cause of action arose.
5. Section 5(A) of the Environment (Protection) Act, 1986, provides for an appeal against the orders under the CRZ Notification which wasn’t availed by the respondent.
Article 21 of the Constitution gives the guarantee of life to a person. It is not restricted to guarantee of life only to a citizen of India. The court cannot take a narrow view, to restrict the applicability of Article 21 only to a citizen of India. Article 21 covers the guarantee to enjoy a ‘dignified life’ and as such, Betty Alvares was entitled to file the Writ Petition before the Hon’ble High Court of Bombay, Bench at Goa. The averments in the Application go to show that her complaints were duly inquired and the Authorities had found substance in the complaints, but not taken affirmative action and therefore, she approached to Hon’ble High Court, since the Respondents were found to have committed a blatant violation of the CRZ regulations. Even assuming that Applicant- Betty Alvares, is not a citizen of India. Yes, the Application is maintainable
A plain reading of Section 2(j) will make it clear that the word ‘person’ has to be construed in a broader sense. It includes ‘an, whether a national or a person who is not a citizen of India. Since it’s an environmental dispute, the Application of Betty Alvares is maintainable, irrespective of the question of her nationality.
Since, the original Writ Petition was not dismissed by the Hon’ble High Court of Bombay, Bench at Goa, on the ground of limitation. Nor it was dismissed at the stage of admission for the reason that an alternate remedy to approach the NGT was available. Contesting Respondents also did not pin-point that such alternate remedy was available to Applicant- Betty Alvares and, therefore, the Writ Petition was not maintainable.
It was only after the Judgment of the Apex Court in “Bhopal Gas Pideet Mahila Udhyog Sanghatna vs Union of India” (2012) 8, SCC 326 that by agreement of parties the Hon’ble Bench of High Court rendered the transfer order.
It was obvious that Ma. Betty Alvares did not play any trick to avoid impediment of limitation in the filing of the Application under Section 14 of the National Green Tribunal Act, 2010, which was not in contemplation at the relevant time. Since it is the discretion of the Hon’ble High Court under Article 226 to consider whether the Writ Petition should be entertained even though any other remedy is available to the Petitioner. The learned Counsel for the Respondents submits that Section 5(A) of the Environment (Protection) Act, 1986, provides for an appeal against the orders under the CRZ Notification. But in absence of directions under Section 5, Applicant – Betty Alvares cannot file any Appeal or Application. We do not find any substance in this responded argument, since the Application is covered by Section 14 since it involves “substantial question relating to the environment.”
Tribunal held that violation of CRZ Notification, or environment obligation under the statute, including Regulation pertaining to Municipal Laws, or pertaining to parameters of the constructions by which the community at large is affected, would come within the ambit of National green tribunal Act 2010. The Applicant has not filed any Application directly in this Tribunal. This being a transferred Application, the objection regarding limitation is not open for consideration and will have to be rejected. As the result, both the Misc. Applications are dismissed due to lack of substance. Objections are overruled
Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedures established by law. The state and its citizens have to take responsibility for the right to clean the environment because we live in this environment.
Section 2 of NGT Act Definitions- (1) in this Act, unless the context otherwise requires,–
(m) “Substantial question relating to environment” shall include an instance where,–
(i) There is a direct violation of a specific statutory environmental obligation by a person by which,–
(a) The community at large other an individual or group of individuals is affected or likely to be affected by the environmental consequences; or
(B) The gravity of damage to the environment or property is substantial; or
(c) The damage to public health is broadly measurable;
(ii) The environmental consequences related to a specific activity or a point source of pollution.”
Section 14(3) of the national green tribunal– No application for adjudication of a dispute under this section shall be entertained by the Tribunal unless it is made within six months from the date on which the cause of action for such dispute first arose
Section 5(A) of the Environment (Protection) Act, 1986, provides for an appeal against the orders under the CRZ Notification.
The national green tribunal, a specialised judicial body, came into existence for adjudication of environmental disputes. It deals with cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to the environment.
Foreign nationals can file a writ petition to enforce the fundamental right guaranteed to them by the constitution of India.
Article 21 applies to “any person” i.e. it clear that citizen and non-citizen both are included in its ambit. Therefore a foreign national Ms Betty C Alvarez could file a case under the said article for the enjoyment of pollution-free air, enforcement of regulation of CRZ and the right to live with dignity
Even if a person had not sustained an injury or loss of property, he could still file a petition against any illegal construction or encroachment of governmental land, if there is a substantial question in relation to the environment.
This case has showcased that to live a life peacefully and in a pollution-free environment is not only a citizen right but also. Ms Betty Alvarez not being a citizen went to all extend to make it to the notice of people what was wrong going on. She took it as her duty for the larger community to save the wrath that could unleash soon due to illegal construction. This case has also made it clear that Article 21 covers the word, “any person” which implies any person irrespective of his nationality is eligible to file public interest litigation.