Karnataka HC Seeks Better Explanation From NHAI For Affidavit Saying 'Environment Protection Act Was Framed At Foreign Powers' Instance'

The Karnataka High Court on Tuesday refused to entertain an application filed by National Highways Authority of India (NHAI), tendering unconditional apology and seeking to unconditionally withdraw the statement of objections, filed on January 4, wherein the authority made a bizarre statement that the Environment Protection Act, 1986, has been passed by the Parliament at the instance of foreign powers.

A bench of Chief Justice Abhay Oka and Justice B A Patil said "We have perused IA filed by National Highways Authority of India, we find that compliance with various directions issued under the order dated Jan 11, has not been made and without making compliance hurriedly the present IA has been filed. The bonafides of NHAI will have to be tested based on compliance of directions issued under the order Jan 11."

During the hearing the bench orally said "Application does not contain a whisper about compliance of directions issued in para 14 and 15 and 20, of the order. As if NHAI feels it is above the law and it will not comply with any orders of the court."

Senior Advocate Uday Holla, appearing for the authority submitted that "What happened was because of urgency to file the statement of objections. The advocate prepared it and he signed it. Normal procedure is that they send it to the Head office, which vets it, it was not done. Normally, when there is a senior counsel appearing, he vets it that was also not done."

Following which the bench pointed out that the present application was filed by the same advocate. To which Holla submitted that "The advocate who was a retainer has now been terminated and the IA was prepared by him before the order was made available."

The bench responded by saying "This is no justification that order copy was not available. We never directed you to file IA in a specific time. Why should you file this IA."

To which Advocate Holla contended that it was to show bonafides and to show that we are not here to justify this (Statement of objection)." The bench reverted by saying "The manner in which the application is filed by the same advocate, shows lack of bonafide."

Holla even mentioned that the application was filed hurriedly. To which the court responded by saying "If application is filed hurriedly, in that hurry we will dismiss it also."

Following the remark, Holla said "I have seen the statement of objection, it is absolutely sacrilegious. I entirely bow down to what is falling from the lorshdips. If the matter is taken up next week, we will place everything on record as to what compliance we have done."

Chief Justice Oka then said "We are putting you to notice, of course we can't prevent you from filing a better statement of objections, as you have to contest the matter on merits. But even if the bench permits, it will be subject to very heavy cost. In a lighter vein we are saying this, the quantum of cost will depend on the status of the party and the status of the counsel appearing for the party."

Advocate Holla then quoted "To err is human and to forgive is divine." To which Justice Oka said "Our job is to show magnanimity, we can show magnanimity provided we are satisfied that the system is corrected. We are giving you a choice, to file a better application and let these officers pay a substantial amount by way of donation to any charitable organisation and produce receipts. We won't impose cost on you."

The bench said "Sometimes we get the impression, this is not the first matter, that the statement of objection is drafted by contractors of NHAI. This is a classic case. Therefore we have said we want to know the procedure for drafting and filing the statement of objection."

It concluded by directing the Union of India to respond by stating what action they are going to take against NHAI for going to the extent of saying that a Law is enacted at the instance of foreign powers. The matter has been posted for further hearing on February 2.

The Statement of objection filed on January 4, stated "Whereas the decisions were taken at the United Nations conference on the Human Environment held at Stockholm in June 1972, in which India participated to take appropriate steps for the protection and improvement of the Human environment. Hence the Act has been passed not only for the protection of the environment, but also at the instance of foreign powers."

The bizarre claim has been made in the statement of objection filed by R B Pekam, working as Deputy General Manager (T) in the regional office of the National Highways Authority of India, Bangalore. The reply was filed while opposing a petition filed by United Conservation Movement Charitable and Welfare Trust , through it advocate Prince Isac, challenging the notification dated August 22, 2013 issued by the MoEF &CC, which recommends exemption of EIA process for expansion of National Highways.

The statement also stated that many NGOs are filing PILs at the instance of 'foreign powers'. The statement read thus: "It is submitted that there are many organisations in India calling themselves as Environmental Action Groups and Human Rights Groups, such as Amnesty International etc, which are actively involved in attacking developmental projects and challenging the government policies and notifications and doing anti-national activities. There are many NGOs receiving funds from foreign sources and church funds in contraventions of laws."

The statement of objection has also alleged that NGO Wildlife First Trustee, filed a petition before the Apex court (Wp Civil 109/2008) and obtained a stay order from the apex court on the eviction of lakhs of so called scheduled tribes and other traditional forest dwellers whose claims for forest land rights have been rejected under the Forest Rights Act of 2006. That such litigations are initiated with vested interest, individuals and groups with hidden aims and thereby discrimination against the respondent (NHAI).

The Statement also says that there is a bar on the Courts under Section 22 of the Environment Protection Act from interfering with the action for the Central Government:

"The petitioners are barred from challenging the impugned notification dated 22/08/2013 of the Ministry of Environment and Forest in so far as it relates to the amendment of National Highways as it I has been promulgated on practical grounds of permitting improvement and development of national highways. Under section 22 of Environment Protection Act there is a bar on courts from interfering with the action for the Central Government. "

Adding "It is submitted that though the bar generally applies to civil courts the decisions of the Central government are generally not interfered with on any challenge by vested interest groups and those inimical to public interest and also National Highways being improved or developed."

While opposing the petition a peculiar stand is also taken by NHAI stating that petition has quoted passages from books written by Duniway and Herrick 2011, Katz et all 2014, shows that the writ petition may have been filed at the instance of foreign vested interest.

The affidavit reads thus: "The reference to foreign authors, Bruzineel 2004, slide etc all 2006, Chadwick et all 2006, in the para all show that the petitioner has relied on foreign authors and their books as material for targeting the respondents. It is well known that India is rising in the world economically, having achieved the status of having the 5th largest economy and certain western powers and India's enemy neighbors are envious of and want to hit development projects of the central and state governments. As also create large scale public unrest and even funding them. The reference material extracted from the book of siddie, 2006 confirms the above view that vested interest may be involved."

To which the court had said "Only because petitioner has referred to and relied on what foreign authors have written the NHAI has drawn an inference that a vested interest may be involved."

In another paragraph the statement reads thus "The power under the Environment Protection Act is not only to restrict dangerous activities but also to permit harmless activities and operations as also those with minimal environment damage. Therefore it cannot be said that it is only to prevent control and abatement of environmental pollution."