National Green Tribunal
Satyanarayan Rao vs Union Of India on 27 September, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
APPEAL No. 24/2022/EZ
(I.A. No. 186/2022/EZ)
IN THE MATTER OF:
Satyanarayan Rao,
S/o, Late Kurma Rao,
R/o Milan Market OMP Line,
Jharsuguda District,
Orissa - 768204,
....Appellant(s)
Versus
1. Union of India
Through its Secretary,
Ministry of Environment, Forests & Climate Change,
Indira Paryavaran Bhavan, Jor Bagh Road, Aligunj,
New Delhi - 110003
2. M/s Vedanta Limited,
Through its Chief Executive Officer,
Village-Bhurkamunda, P.O.- Kalimandir,
District-Jharsuguda, Odisha
Pin - 768202,
3. State of Odisha,
Through its Chief Secretary,
Kharavel Bhavan, Bhubaneshwar,
Odisha - 751001,
4. Odisha State Pollution Control Board
Through its Member Secretary,
Paribesh Bhawan,
A/118, Nilakantha Nagar, Unit - VIII,
Bhubaneswar - 751012
....Respondent(s)
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COUNSEL FOR APPELLANT:
Mr. Rahul Choudhary, Advocate a/w Kaustav Dhar, Advocate
COUNSEL FOR RESPONDENTS :
Mr. Dhruv Mehta, Sr. Advocate a/w Mr. Ayush Jain, Advocate, Mr.
Matri Prasad Das, Advocate, Mr. Deepan Kr. Sarkar, Advocate, Mr.
Udayan Verma, Advocate and Mr. Anubhav Roy, Advocate for R-2,
Mr. Anand Prakash Das, ASC for R-3,
Mr. Dipanjan Ghosh, Advocate for R-4,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- September 23rd, 2022 Pronounce On:- September 27th, 2022 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes __________________________________________________________________ JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. This Appeal has been filed by the Appellant, seeking quashing of the Environmental Clearance dated 05.05.2022 granted to the Respondent No.2, M/s Vedenta Limited, by the Ministry of Environment, Forests and Climate Change, ('MoEF&CC' for short), Respondent No.1, for expansion of Aluminium Smelter Production Capacity from 16 LTPA (Lac Tonnes Per Annum) to 18 LTPA. 2
3. Mr. Rahul Choudhary, learned Counsel appearing for the Appellant submitted that the relief of quashing in respect of the (Captive Power Plant) CPP Capacity of 1215 Mega Watts (MW) to the Respondent No.2, M/s Vedanta Limited, was not being sought and may be dismissed as withdrawn. The Tribunal, therefore, permitted the learned Counsel to withdraw this part of the relief with regard to Captive Power Plant (CPP) and dismissed this Appeal, so far as the relief regarding the Captive Power Plant (CPP) was concerned.
4. I.A. No. 186/2022/EZ has been filed by the Appellant, showing cause for condonation of delay in filing the Appeal. It is stated that there is delay of 39 days from the date of communication of the Environmental Clearance and 59 days from the date of grant of Environmental Clearance.
5. Notices were issued on the Condonation of Delay Application being I.A. No. 186/2022/EZ and responses have been filed by the Respondents.
6. In the I.A., it is stated by the Appellant that Environmental Clearance was granted to the Respondent No.2, M/s Vedanta Limited, on 05.05.2022 by the MoEF&CC, Respondent No.1, for expansion of Aluminium Smelter Production Capacity from 16 LTPA to 18 LTPA, Captive Power Plant (CCP), located at Village- Bhurkamunda, District-Jharsuguda, Odisha. It is stated that the Appellant tried to find the Environmental Clearance on the Parivesh Portal but could not find the same and, therefore, he filed a Right to Information (RTI) application on 23.05.2022 before the Public 3 Information Officer, Collectorate-Jharsuguda, Odisha, and in response he received the RTI letter dated 26.05.2022 along with the copy of the Environmental Clearance dated 05.05.2022 granted to Respondent No.2, M/s Vedanta Limited. It is, therefore, stated that the communication of the copy of the Environmental Clearance can only be considered from 26.05.2022 i.e., when the copy was provided to the Appellant through RTI response.
7. It is also stated that as per Section 16(h) of the National Green Tribunal Act, 2010, Appeal can be filed within a period of 30 days from the date on which the order or decision or determination is communicated and that the Act, 2010 further provides another 60 days to file Appeal beyond the prescribed period of limitation but after explaining sufficient cause.
8. It is also stated that after the communication received from the RTI application, the Appellant began the process of collecting documents like - minutes of meeting of the Expert Appraisal Committee ('EAC' for short), Terms of Reference ('ToR' for short), Public Hearing minutes, Environment Impact Assessment Report, Examination Report dated 27.10.2021 and various RTI applications which took 10 (ten) days as the information was scattered and voluminous and which could be completed only by 06.06.2022.
9. It is also stated that the Appellant had a detailed discussion with members of the local community regarding the issue of disposal of fly-ash in their agricultural fields resulting in large scale crop damage as well as the effect of pollution to air, water and land 4 caused or likely to be caused by the said Project. The members of the local community decided that the Project in question needed to be challenged owing to its high pollution and adverse impact on the local community. All this took about 5 (five) more days i.e., by 11.06.2022.
10. It is also stated that Appellant being based in Jharsuguda was required to look for a lawyer in order to file the present Appeal but was informed that in the month of June because there were Court Holidays, lawyers were not available and would be available only after 30.06.2022 and that he should approach them after 30.06.2022. It is also stated that thereafter he contacted the lawyer's office on 10.07.2022 with all the documents and the lawyer started drafting the Memo of Appeal by 22.07.2022 which was completed by 26.07.2022 and the last minute changes to the draft were carried out on 02.08.2022 and thereafter the Appeal was ready by 03.08.2022.
11. The Appellant has also relied upon the judgments of the Hon'ble Supreme Court in (1987) 2 SCC 107 (Collector, Land Acquisition Anantnag Vs. Mst. Katiji), (2019) 15 SCC 401 (Hanuman Laxman Aroskar Vs. Union of India) and (2019) 18 SCC 494 (Mantri Techzone Pvt. Ltd. Vs. Forward Foundation & Ors.), and submitted that for purposes of condonation of delay, limitation should be construed liberally in order to do substantial justice between the parties. It is further submitted that an interpretation that is in 5 favour of conferring jurisdiction should be preferred rather than one taking away jurisdiction.
The Appellant has, therefore, sought condonation of delay of 39 days from the date of communication of the Environmental Clearance and 59 days from the grant of Environmental Clearance in the filing of the present Appeal.
12. Learned Counsel for the Appellant further submitted that even though the Environmental Clearance was granted on 05.05.2022 but on the 'Parivesh Portal' the said date of issuance was not mentioned and, therefore, the Appellant had to move an RTI application on 23.05.2022.
13. We are not inclined to accept this submission of the learned Counsel for the Appellant for the reason that he has not filed the screenshot of the Parivesh Portal of 05.05.2022 and in any case he has not explained as to why he started searching for the issuance of Environmental Clearance dated 05.05.2022 if he had no knowledge prior to 23.05.2022 that Environmental Clearance had already been granted on 05.05.2022. In fact, the Environmental Clearance which has been filed as Annexure A-1 to the Appeal by the Appellant, is itself a screenshot of the Parivesh Portal and the date of issuance of the Environmental Clearance as 05.05.2022 is clearly mentioned at the bottom of the page, therefore, we are not inclined to accept the submission of the learned Counsel of the Appellant that the date of issuance of Environmental Clearance was not found in the Parivesh Portal on 05.05.2022.
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14. The learned Counsel for the Appellant has then referred to the RTI application dated 23.05.2022. Question would arise as to why he moved an application under the RTI at all on 23.05.2022 after a delay of 19 (nineteen) days from the date of issuance of Environmental Clearance.
15. The learned Counsel for the Appellant then submitted that the Environmental Clearance was also published in the newspaper but the Terms of Reference and conditions of Environmental Clearance were not given in the newspaper.
16. The relevant extract of the newspaper has not been filed by the Appellant along with the I.A. No. 186/2022/EZ in support of the claim made by the Appellant. However, since the Environmental Clearance was issued on 05.05.2022 and it was also published in the Parivesh Portal on the same day, we are not inclined to accept the contention of the learned Counsel for the Appellant that the Environmental Clearance was not published in its entirety. It may be that the newspaper publication did not publish the entire copy of the Environmental Clearance but it was clear that the Environmental Clearance was granted on 05.05.2022 and the Appellant could have obtained the same from the Parivesh Portal promptly.
Be that as it may, the relevant photographs or extract of the newspaper publication of the Environmental Clearance information has not been filed by the Appellant. In this view of the matter, the 7 contention of the Appellant that limitation should be counted from the date of communication of the Environmental Clearance under the RTI application is thoroughly misconceived and does not explain the delay of 21 (twenty one) days.
17. Even thereafter, the contention of the learned Counsel for the Appellant that he could not file the present Appeal because by that time it was the month of June and the lawyers were on holiday, is not at all convincing and does not explain why he contacted the lawyer only on 10.07.2022. Even the submission of the learned Counsel for the Appellant that it took a lot of time to collect papers relating to public hearing, EAC Report, EIA Report, ToR etc. and he could not collect all this information by 06.06.2022, is also not convincing since all this information would have been available on the Parivesh Portal on 05.05.2022.
18. The Respondent No.2, M/s Vedanta Limited, has filed its reply affidavit dated 17.09.2022 to the I.A. No. 186/2022/EZ, stating there in that the Respondent No.2 had published the Environmental Clearance in the English newspaper "Orissa Post"
and in the vernacular newspaper "Samaj" on May 11, 2022, and annexures in support thereof have also been filed collectively as Annexure-C to the affidavit. Thus, the Appellant was aware w.e.f.
11.05.2022 that the Environmental Clearance had been issued in favour of Respondent No.2 and has also put-up the Environmental Clearance on the Parivesh Portal on 05.05.2022 which does not explain as to why the Appellant moved RTI application after a lapse 8 of a further 12 days i.e., only on 23.05.2022. It is also stated that the copy of the Environmental Clearance was also made available to each of the following authorities:-
"(i) The Member Secretary, SPCB, Odisha, Bhubaneswar,
(ii) The Regional Officer, SPCB, Odisha, Jharsuguda,
(iii) Regional Officer MoEF&C, IRO, Bhubaneswar,
(iv) ADFB, Jharsuguda Zone, District-Jharsuguda,
(v) The Sarpanch, Badmal Gram Panchayat,
(vi) The Sarpanch, Katikela Gram Panchayat,
(vii) The Sarpanch, Dalki Gram Panchayat,
(viii) DFO, Jharsuguda Forest Division, Jharsuguda,
(ix) Project Director, DRDA, Jharsuguda,
(x) Chairperson, Jharsuguda Municipality, District- Jharsuguda,
(xi) District Collector and Magistrate, Jharsuguda,"
Therefore, the Sarpanchs of the concerned Gram Panchayats were fully aware of the Environmental Clearance having been granted to the Respondent No.2 on 05.05.2022.
19. In the affidavit, it is also stated that by his own admission the Appellant had acquired the Environmental Clearance through the RTI application on 26.05.2022 which does not explain the further delay of 68-72 days in filing the Appeal only on 03.08.2022 if the limitation is to be counted w.e.f. 26.05.2022.
20. Reference has also been made to the Ministry of Environment, Forests and Climate Change EIA Notification dated 14th September, 2006. Regulation 10 of the EIA Notification reads as under:- 9
"10. Post Environmental Clearance Monitoring:
(i)(a) In respect of Category 'A' project, it shall be mandatory for the project proponent to make public the environment clearance granted for their project along with the environmental conditions and safeguards at their cost by prominently advertising it at least in two local newspapers of the district or State where the project is located and in addition, this shall also be displayed in the project proponent's website permanently.
(b) In respect of Category 'B' projects, irrespective of its clearance by MoEF / SEIAA, the project proponent shall prominently advertise in the newspapers indicating that the project has been accorded environment clearance and the details of the MoEF website where it is displayed.
(c) The Ministry of Environment and Forests and the Sate/Union Territory Level Environmental Impact Assessment Authorities (SEIAAs), as the case may be, shall also place the environmental clearance in the public domain on Governmental portal.
(d) The copies of the environmental clearance shall be submitted by the project proponents to the Heads of local bodies, Panchayats and Municipal Bodies in addition to the relevant offices of the Government who in turn has to display the same for 30 days from the date of receipt.;"
Thus, it will be seen that as per the said regulation copies of the Environmental Clearances shall be submitted by the Project Proponents to the heads of local bodies, panchayats and municipal bodies in addition to the relevant offices of the Government which, in turn, has to display the same for 30 days from the date of receipt.
21. Mr. Dhruv Mehta, learned Senior Counsel appearing for Respondent No.2, M/s Vedanta Limited, further submitted that the 10 conduct of the Appellant must be decided for his bonafides which is lacking in the present case. Learned Senior Counsel referring to his objections submitted that on August 24, 2020, Anchalik Paribesh Surakhya Sangh filed a Writ Petition (C) No. 24669/2020 praying to defer the public hearing. The relevant extract of the reply affidavit of Respondent No.2 may be reproduced herein below which reflect upon the lack of bonafides of the Appellant with regard to the filing of the present Appeal and his contention that he had no knowledge of the grant of Environmental Clearance dated 05.05.2022 till he received the RTI letter dated 26.05.2022 which reads as under:-
i. On August 24, 2020, "Anchalik Paribesh Surakhya Sangh", the above mentioned organization of the Applicant, filed WP(C) No. 24669/2020 praying to defer the public hearing that was scheduled on September 30, 2020 wherein the Hon'ble Division Bench of the Orissa High Court by its order dated September 28, 2020 granted liberty to the petitioners as well as all interested public to give their opinion at the time of public hearing or written opinion within 30 days of the aforesaid date of the notice of public hearing. A copy of the order dated September 28, 2020 is annexed hereto and marked with the letter "F".
ii. Simultaneously, on September 24,2020, Subrat Bhoi and Tejraj Kumura filed another WP (C) No. 24789/2020 on the selfsame cause of action in which the Hon'ble Orissa High Court passed an interim order on September 29, 2020 staying the conduct of the aforesaid public hearing. However, on the very next date on the matter being mentioned before the Hon'ble High Court, the order dated September 29, 2020 was partially modified and the public hearing was permitted and in fact directed to take place and which was duly conducted on the prescribed date. A 11 copy of the order dated September 30, 2020 is annexed hereto and marked with the letter "G".
iii. The public hearing was conducted wholly in accordance with the applicable laws and was attended by 221 persons out of which 62 persons made submissions. Further, 153 persons made written submissions in the process of consultation. All such submissions were then forwarded by the RO of the State Pollution Control Board to the competent authority of the MoEF. The Applicant participated in the public hearing.
iv. On October 9, 2020 the Hon'ble High Court disposed of WP (C) 24789/2020 with a direction to the petitioners to make representation to the Collector, Jharsuguda pertaining to the effectiveness of the public hearing whereby the Collector was to consider whether another public hearing should be held or not. A copy of the order dated October 9, 2020 is annexed hereto and marked with the letter "H".
v. In pursuance to the order dated October 9, 2020 passed by the Hon'ble Orissa High Court in WP (C) 24789/2020, the Learned Collector duly considered the representation in Subrat Bhoi and others as to the necessity of holding another public hearing. After considering all such representations, by a reasoned order dated October 18, 2020 the Learned Collector demonstrated with in details as to why there was no such requirement of holding another public hearing as an effective public hearing had already been held. The aforesaid order of the Collector dated October 18, 2020 is annexed hereto and marked with the letter "I".
vi. On March 16, 2021 the said Subrat Bhoi filed a Special Leave Petition being 5140/2021 before the Supreme Court challenging the aforesaid dated October 9, 2020 which was dismissed on the ground that it could be appealed before the Hon'ble Orissa Court. In pursuance to that, Subrat Bhoi filed WA 711/2021 in which the Hon'ble 12 Division of the Hon'ble High Court by an order dated December 15, 2021 was pleased to grant to stay on the process for grant of EC till the disposal of WA 711/2021. The aforesaid order dated December 15, 2021 is annexed hereto and marked with the letter "J".
vii. On January 3, 2022, one U Munita Rao, wife of the Applicant in the instant Application filed an IA for intervening in WA 711/2021. The said IA did not disclose that the intervenor was the wife of the Applicant or the fact that WP (C) 24669/2020 filed through the Applicant on 03.01.2022 had been dismissed by the same Hon'ble High Court. A copy of the aforesaid IA filed by U Munita Rao is annexed hereto and marked with the letter "K". viii. Finally, on January 10, 2022, the Hon'ble Orissa High Court passed orders in both WA 711/2021 WP (C) 24669/2020 disposing of both the appeal and the writ petition and held that there was no legal impediment for the competent authority to proceed in accordance with law for considering the Respondent No. 2 Company's application for grant of EC. A copy of the order dated January 10, 2022 is annexed hereto and marked with the letter "L".
ix. After the aforesaid order dated January 10, 2022 was passed by the Hon'ble High Court, the Applicant made another representation before the Expert Appraisal Committee (hereinafter referred to as "EAC") dated March 23, 2022 against the expansion project of the Respondent No.2 Company which was duly considered by the EAC and the Respondent No. 2 Company had also been called upon to give its response to the Applicant's representation vide an affidavit dated March 26, 2022. In this regard, copies of the representation dated March 23, 2022 made by the Applicant, the email of MoEF dated March 25, 2022 asking the Respondent No. 2 Company to give a reply and the reply affidavit of the Respondent No.2 Company dated 13 March 26, 2022 are annexed hereto and marked, "M" and "N" respectively.
x. Subsequently, the EC was granted on May 5, 2022. xi. In fact, a perusal of the relevant minutes of the EAC meetings will reveal that the Applicant had participated in the process including the public hearing and his objections had also been recorded and dealt with. The Applicant has categorically admitted in the pleadings of his Appeal that he has all along participated in the process including in the public hearings.
xii. Throughout the aforesaid process, as will be apparent from the statements made above and the documents annexed herein, it will be unambiguously evident that the Applicant was unusually alert and aware of all developments through various sources and was very prompt in approaching various legal and statutory fora to stall the grant of EC, either by himself or through his organization or his wife. On a cumulative appreciation of the aforesaid facts, it is not open to the Applicant to plead a case of ignorance of the grant of EC as an excuse for the unreasoned delay in approaching this Hon'ble Tribunal. Therefore, it is submitted that this Hon'ble Tribunal be kindly pleased to dismiss the Application and consequently the Appeal in the interests of justice, fairness and for equitable considerations.
xiii. Curiously, despite being alert about the matter throughout, the Applicant has a discernible pattern of strategically filing delayed Application to delay the process of granting EC to the Respondent No. 2 Company. This will be apparent from the following facts:
a. The initial challenge to the public hearing by filing the writ petition in the name of Applicant's organization was made on September 24, 2020 which was only a week before the public hearing scheduled on September 30, 2020 despite 14 the Applicant knowing about the date of the public hearing from at least August 27, 2020.
b. The agenda for the EAC meeting to be held on March 22 and March 23, 2022 was published on March 4, 2022 on the PARIVESH website for public viewing. From the agenda it would be apparent that the case of the Respondent No.2 Company for grant of EC would be considered on those dates. This was known to the Applicant all along. Yet, to delay the process, the Applicant filed his representation against the granting of EC for expansion on late evening (6:39 P.M.) on the last day of the EAC meeting i.e., March 23, 2022.
That from the aforesaid, it is obvious that the Applicant has been consistently attempting to pursue litigations against the Respondent No. 2 Company in different forums with mala fide intent, so as to stall any opportunity which furthers the bigger agenda and goal or economic self-sufficiency in the State of Odisha. The Respondent No. 2 Company craves leave of this Hon'ble Tribunal to place on record documents evidencing a series of similar frivolous and vexatious cases filed by the Applicant/his associates against the Respondent No. 2 Company, wherein orders were passed on various dates by the Hon'ble Courts in favour of the Respondent No. 2 Company.
In fact, it is clear from the aforesaid brief timeline, and will be reinforced by the subsequent submission in the present Reply Affidavit that the Applicant was not only sleeping on his rights, he was in fact just waiting for an opportune moment to approach this Hon'ble Tribunal against the Respondent No. 2 Company which arose with the grant of the EC dated May 5, 2022. This clearly showcases that the Applicant is least bit concerned about the welfare of the local community, let alone the cause of environment; in his relentless and illogical pursuit of 15 causing irreparable harm to the Respondent No. 2 Company, the Applicant has given a complete go by to the due process of law as well to the legal principles which are required to be satisfied for a valid case before this Hon'ble Tribunal."
22. We have gone through the judgments referred to by the learned Counsel for the Appellant in support of plea for condonation of delay and in our opinion the said judgments have no application to the peculiar facts of the present case.
23. Thus, from the documents on record, we are not satisfied that the Appellant has been able to make out sufficient cause for condonation of delay. The I.A. No. 186/2022/EZ is accordingly rejected.
24. The Appeal No. 24/2022/EZ is also accordingly dismissed as barred by limitation.
............................................ B. AMIT STHALEKAR , JM .....................................
SAIBAL DASGUPTA, EM Kolkata, September 27th, 2022, Appeal No. 24/2022/EZ (I.A. No. 186/2022/EZ) AK 16