As Costs, Donate To Environmental Organization : Karnataka High Court To NHAI Over Objectionable Affidavit

A division bench of Chief Justice Abhay Oka and Justice Sachin Shankar Magadum said:

"Notwithstanding what has happened, the prayer made by NHAI for grant of permission to withdraw the statement of objection filed on January 4 will have to be acceded to. The same will have to be subject to payment of appropriate cost. Before we pass any order regarding cost, we give the opportunity to NHAI to donate a substantial amount to any organisation which according to NHAI is doing constructive work in the field of Environment. While we say so, we are not compelling the NHAI to do so, as the court always retains power to pass appropriate orders of cost."

Senior Advocate Uday Holla appearing for the authority submitted : "Should the amount be paid to the Chief Minister's Relief fund or Prime Minister's relief fund? The court can give some suggestions".

To which the bench said "NHAI can pay a substantial amount by way of donation to an organisation of your choice working in the field of environment, which according to the NHAI is not setup by foreign powers? Ultimately we have to test your bonafides."

It added "As regards to the organisation to whom to donate, we leave it to the choice of NHAI. The amount also is left to you, but the amount will have to be consistent with the status of NHAI and with the status of the senior counsel appearing for NHAI."

The NHAI had filed the objectionable affidavit while opposing the petition filed by United Conservation Movement Charitable and Welfare Trust  through its 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 affidavit alleged that "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 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."

After the Court took objection to the above statements, the authority sought to withdraw the affidavit saying :

"NHAI is a law abiding statutory authority and has no intention to show disregard either to the Parliament or any law enacted by it and there was no intention to disregard the Honourable court as well in any manner. It is rather unfortunate that certain unwarranted and irresponsible allegations were made in the statement of objections."

Further it is said "NHAI has utmost respect and regard for the law and does not intend to hurt the rights of any litigant. It had no intention to make any reckless or insensitive remarks against any party to this petition or any third party and in specific any non government organisation.

The NHAI has expressed its deepest unconditional apology for the unwarranted and scandalous contents of the statement of objections filed before the court and assures that it will ensure fairness while filing any pleadings before the court.

On January 19, the bench expressed dissatisfaction with the withdrawal application.

The bench said : "Though this court by order dated January 11 had directed the Chairman of NHAI to nominate a senior officer and inquire in the matter, the order of appointment of officer has been passed on Jan 25, by member Administration. Though the counsel appearing for NHAI, states that the note sheet indicated that the appointment was made by Chairman himself, the order dated January 25, does not refer to any note sheet or any order passed by Chairman but by said order the Member has purported to appoint the senior officer. The inquiry report of the said officer is also not placed on record."

Senior Advocate Holla orally informed the court that a fresh order appointing the senior officer as per the court direction will be passed by the Chairman of NHAI and the same will be placed on record of the court.

Following which the court observed "Our worry is that the inquiry report is not coming before the court. All this when there is direct attack on Central legislation, stating that enactment is at the instance of foreign powers, a casual approach is shown by NHAI."

In its order the court said:

"Prima facie we do not think that the statement of objections, are being taken seriously by NHAI. Though the officer who has signed the statement of objection has shifted the entire blame on the advocate, the NHAI has not placed on record a copy of any notice addressed by it to its advocate. The show cause notice dated January 12 and January 18 and the reply filed by advocate to whom show cause was issued is not placed on record. It is not clear whether the advocates filed the reply."

The bench has now posted the matter for hearing on February 9, for considering the response of NHAI and report of inquiry prepared by the officer.