Application under Sections 14 and 15 (b) and (c) read with Section 18 (1) and (2) of the National Green Tribunal Act, 2010.
1. The applicant, a journalist with an illustrious profile filed the present application seeking urgent intervention and directions from this Hon'ble Tribunal for the protection of environment and ecology in the following terms as prayed for:-
“ i) Direct the Respondents to ensure that proper Covid-19 protocol is followed for the disposal of the Covid-19 impacted human corpses, with such suitable amendments that an expert committee appointed by this Hon'ble Court may suggested and as directed by this Hon'ble Court.
ii) Direct the Respondents to devise permanent mechanisms to regulate disposal of dead bodies into the rivers, and issue directions to incentivize resort to crematorium to give effect to the fundamental right to decent burial and cremation;
iii) Direct Respondent No. 4 & 5 to ensure a proper and complete health checkup of those living near the river beds where the human corpses are buried / set afloat and ensure their proper treatment;
iv) Direct Respondents No. 4 & 5 to identify the individuals dependent on the rivers for their livelihood whose right to livelihood is impacted on account of disposal of dead bodies in the river Ganga;
v) Direct the Respondents to initiate immediate corrective action and identify the areas where the corpses are buried on the river beds; and to ensure proper cremation of the bodies so buried, in light of the Report of Seven IITs by improving cremation facilities;
vi) Pass such other orders as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of this case.”
2. The applicant acknowledged various precautionary and safety measures taken including issuance by the Ministry of Health and Family Welfare, Union of India of Standard Operating Procedure/ Directions titled “Covid-19: Guidelines on Dead Body Management” and issuance by the National Human Rights Commission (NHRC) of “Advisory for Upholding the Dignity and Protecting the Rights of the Dead” and directions by the Centre to States to prevent dumping of dead bodies in Ganga or burying of the same on river beds and focus on their safe disposal and providing support for ensuring dignified cremation but claimed that the same remained on paper without implementation on ground and the issue of throwing dead bodies in the river needs to be tackled from environmental point of view and protecting health of those living along the rivers and preventive and curative steps were required to be taken.
3. In view of the averments made in the application, this Tribunal issued notices to the respondents and sought reports from Additional Chief Secretary (Home) and Additional Chief Secretary/Principal Secretary (Health), Governments of Uttar Pradesh and Bihar respectively. The applicant was also directed to file his affidavit giving suggestions regarding creating of public awareness by the media, promoting public participation and involvement of civil society for the cause and improving efficacy of steps already taken and modalities of steps required to be taken.
4. Report was filed by Mr. Vikas Vaibav, Special Secretary, Government of Bihar vide email dated 03.08.2022. Affidavit was filed by the applicant vide email dated 10.08.2022. Report on behalf of respondent no. 4 State of Uttar Pradesh w as filed by Mr. Awanish Kumar Awasthi, Additional Chief Secretary (Home), Government of Uttar Pradesh vide E-mail dated 23.08.2022. Reply was filed by respondent No.6-CPCB vide email dated 20.09.2022. No responses were filed by other respondents. This Tribunal found that the complete information in tabulated form as required vide order dated 10.05.2022 passed by this Tribunal was not given in report filed on behalf of respondent No.5 State of Bihar and hence directed filing of additional report by it. On 24.08.2022 arguments were heard and order was reserved. A copy of the order was ordered to be sent to Additional Chief Secretary, Home, Government of Bihar for requisite compliance. Additional information received from Additional Chief Secretary (Home), Government of Bihar was ordered to be made part of the record as and when received. Report on behalf of respondent no. 5-State of Bihar was filed by Additional Chief Secretary (Home) Department, Government of Bihar by post which was received on 11.10.2022. Vide order dated 15.11.2022, the matter has relisted for hearing in view of the change in the circumstances rendering some of the reliefs to be infructuous and also as this Tribunal considered response from respondent no. 1-Ministry of Environment, Forest and Climate Change, respondent no. 2-Ministry of Jal Shakti and respondent no. 3- National Mission for Clean Ganga to be necessary.
5. Written submissions were filed by the applicant vide email dated 11.02.2023. Report was filed by Bihar SPCB vide email dated 06.04.2023. Replies were filed by MoEF & CC vide email dated 10.04.2023 and by NMCG vide email dated 15.08.2023.
6. Arguments were heard and Judgment was reserved vide order dated 17.10.2023 but on going through the material on record it was found that some material aspects of the case were not adverted to/referred to at the time of arguments and the matter required further hearing for due elucidation/consideration of the same and the matter was relisted for further hearing.
7. Besides the material aspects of decrease in incidence of COVID-19 and absence of any fresh material including media reports regarding throwing of COVID-19 infected dead bodies in the river or burying on the river bed, one material aspect is that in O.A. No. 333/2021titled as M/s Real Anchors Developers Pvt. Ltd. vs U.P. State Pollution Control Board & Ors this Tribunal while considering the issue of prevention of air pollution on account of dust and emissions during cremation had issued directions which aspect had not been specifically referred to. In O.A. No. 333/2021titled as M/s Real Anchors Developers Pvt. Ltd. vs U.P. State Pollution Control Board & Ors this Tribunal observed in para 5 of its order dated 12.04.2022 as under:
“We have considered the issue in the light of the report. While the Tribunal has no intention to hurt any religious belief, in view of clear potential of uncontrolled air pollution, the Tribunal has already passed order dated 24.05.2021 requiring all the States/UTs to consider remedial steps to prevent such pollution which can include use of gas, educating and motivating people to switch over to environmental friendly methods of cremation. To begin with, electric/PNG crematoria can be set up as an option to the wood based crematorium and if and to the extent people are persuaded to do so, a wood based crematorium can be given a go by. The report does not show serious effort on this aspect. Accordingly, the concerned Authorities may explore viability of electric/PNG crematorium alongside wood based crematorium, in the interest of environment and also lesser cost to helpful those who find it difficult to afford high cost of wood based cremation. This aspect may be considered by the concerned authorities of all the States/UTs.”
8. Reply has been filed by NMCG vide email dated 14.02.2024 and further responses, if any, are yet to be filed.
9. Ms. Gayatri Dahiya, proxy counsel for the Counsel for the applicant has appeared today and instead of seeking any pass over or adjournment stated that she would argue the matter while conceding that she had not been engaged as Counsel by the applicant. This Tribunal expressed its willingness to pass over the matter but she stated that learned Counsel for the applicant are busy in some other Court and are unable to appear before this Tribunal.
10. Rule 1 of Order III of the Code of Civil Procedure, 1908 provides that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. Proviso to said Rule mandates that any such appearance shall, if the Court so directs, be made by the party in person.
11. Rule 4 of Order III of the Code of Civil Procedure, 1908 deals with appointment of pleader and the same reads as under:
“4. Appointment of pleader
(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing singed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.
Explanation.-For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,-
(a) an application for the review of decree or Order in the suit,
(b) an application under section 144 or under section 152 of this Code, in relatior to any decree or Order made in the suit,
(c) an appeal from any decree or Order in the suit, and
(d) any application or act for the purpose of obtaining copies of documents 01 return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.
(3) Nothing in sub-rule (2) shall be construed-
(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or
(b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in sub-rule (1).
(4) The High Court may, by general Order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the Order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating-
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and .
(c) the name of the person by whom he is authorized to appear :
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.”
12. In Surendra Mohan Arora v. HDFC AIR 2014 SC 2871 prohibition on proxy counsels from making submissions imposed by the National Consumer Disputes Redressal Commission was challenged by the petitioner by arguing that: (a) the prohibition prevents an enrolled lawyer from presenting his case, (b) it violates Article 19(1)(g) of the Constitution of India, and (c) the prohibition violates Section 30 of the Advocates Act, 1961 which guarantees every person enrolled the right to appear before any Court or any other authority. The Court rejected the above contentions and held that since the term proxy counsels' does not appear in any statute, rule, the restriction is valid. Consequently, a proxy counsel has no right to make any submissions on merits of the case before the Court/Tribunal.
13. In view of Rule 4 of Order III of the Code of Civil Procedure, 1908 Ms. Gayatri Dahiya cannot be said to be duly appointed pleader of the applicant and cannot act for the applicant before this Tribunal.
14. Consequently, the applicant, who is not present before this Tribunal in person physically or through VC, must be treated to have failed to appear before this Tribunal by duly appointed recognized agent or duly appointed pleader.
15. Rule 20 of the National Green Tribunal (Practices and Procedure) Rules, 2011, which specifies the action on applicant or appellant’s default, reads as under:
“Rule 20. Action on application for applicant's or appellant's default. - (1) Where on the date fixed for hearing of the application or appeal, as the case may be, or on any other date to which such hearing may be adjourned the applicant or appellant, as the case may be, does not appear when the application or appeal, as the case may be, is called for hearing, the Tribunal may in its discretion, either dismiss such application or appeal for default or hear and decide it on merit.
(2) Where an application or appeal, as the case may be, has been dismissed for default and the applicant or appellant, as the case may be, files an application within thirty days from the date of dismissal and satisfies the Tribunal that there was sufficient cause for his non-appearance when the application or appeal was called for hearing, the Tribunal shall make an order setting aside the order dismissing the application or appeal, as the case may be, and restore the same:
Provided that where the case was disposed of on merits the decision shall not be reopened except by way of review.”
16. In view of the applicant’s default in appearance through duly appointed recognized agent or duly appointed pleader and the facts and circumstances of the case we consider it appropriate that, instead of deciding the application on merits, the application be dismissed for default of the applicant in appearance and the application is accordingly dismissed in default for non-appearance of the applicant.
