National Green Tribunal
Jaya Mathachan vs Ministry Of Environment Forest And ... on 9 April, 2021
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.6:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
I.A. No.17 of 2019 (SZ) in
Appeal No. 31 of 2020 (SZ)
Appeal Dy. No.59 of 2019 (SZ)
(Through Video Conference)
IN THE MATTER OF:
Jaya Mathachan
W/o. Mathachan,
Residing at Mangaly House,
Manjapra Village, Manjapra
P.O.683581, Aluva Taluk,
Ernakulam District, Kerala State.
...Applicant/Appellant(s)
Versus
1) Ministry of Environment, Forests & Climate Change,
Represented by its Secretary,
Jor Bagh, New Delhi - 100 003.
2) District Environmental Impact Assessment Authority,
Rep. by its Chairman, The District Collector,
Ernakulam, Civil Station, Kakkandu,
Kerala - 682 030.
3) District Level Environment Appraisal Committee,
Ernakulam, represented by its Member Secretary,
The Geologist, District Office,
Department of Mining and Geology,
Civil Station, Kakkanadu,
Kerala - 682 030.
4) The Member Secretary DEIAA,
And Sub Collector/RDO,
Fort Kochi, Ernakulam
Kerala - 682 001.
5) M/s. Black Diamond Rock Products,
Manjapra, Aluva Taluk,
Ernakulam District - 683 581.
...Respondent(s)
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For Applicant(s): Mr. Shibu Varghese.
For Respondent(s): Mrs. M. Sumathi for R1.
Mr. E.K. Kumaresan for R2 to R4.
Mr. Baby Kuriakose for R5.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
Date of Order: 09.04.2021.
ORDER
1. This is an interlocutory application filed by the applicant/appellant to condone the delay of 32 days in filing the appeal.
2. It is averred in the delay condonation application that the appeal was filed challenging the Environmental Clearance (EC) dated 07.12.2018 issued by the 2nd respondent in favour of the 5th respondent. The impugned Environmental Clearance (EC) dated 07.12.2018 was published in the official website on 26.03.2019 and the appeal ought to have been filed on or before 25.04.2019 as per the Section 16 of the National Green Tribunal Act, 2010.
3. It is also averred in the application that the appeal was filed only on 27.05.2019 and the delay was not wilful. When they got knowledge about the issuance of the Environmental Clearance (EC), they approached the lawyer at New Delhi and after making necessary research with required documents, they filed this appeal before the Principal Bench of National Green Tribunal, New Delhi, but the same has been returned with direction to file the same before the Southern Zone Bench at Chennai, as it comes within Page 2 of 12 the jurisdiction of Southern Zone. Immediately, the same was filed before this Bench on 27.05.2019 and that was the reason for the delay occurred.
4. The 5th respondent filed counter affidavit to the delay condonation application stating that the appeal is not maintainable, as it was filed beyond 90 days. The Environmental Clearance (EC) granted on 07.12.2018 and the publication was made on 14.12.20218 in the local newspapers and that should be taken as date of knowledge as far as the appellant is concerned. Further, she had no case that she was not aware of the issuance of the Environmental Clearance (EC), as she is the sister-in-law of the 5th respondent and the 5th respondent had already started their activities during the month of December itself. So, it cannot be said that the appellant was not aware of the issuance of the Environmental Clearance (EC) in favour of the 5th respondent and there was no sufficient cause provided for condoning the delay. So, they prayed for dismissal of the application.
5. Though the 1st respondent has filed counter in the delay condonation application, they have not mentioned anything about the delay. But they only explained the circumstances under which the District Environmental Impact Assessment Authority (DEIAA) had granted the Environmental Clearance (EC) and they also mentioned about the partial setting aside of the EIA Notification, 2016 by constituting District Environmental Impact Assessment Authority (DEIAA) for consideration of certain activities for issuing Environmental Clearance (EC) as per order in O.A. No.186 of 2016 titled as Satendra Pandey Vs. Ministry of Environment, Forests & Climate Change (MoEF&CC) & Anr. dated, 30.09.2018 and it is on that basis, the above appeal has been filed challenging the jurisdiction capacity of the Page 3 of 12 District Environmental Impact Assessment Authority (DEIAA) in granting the Environmental Clearance (EC).
6. The 3rd respondent also filed counter affidavit without mentioning anything about the condonation of delay, but they have only justified the issuance of Environmental Clearance (EC) as per the existing laws. They also mentioned that certain Writ Petitions filed before the Hon'ble High Court of Kerala by some persons against considering the Environmental Clearance (EC), as the project proponent had made certain false declaration regarding the existence of water bodies etc. and the Hon'ble High Court of Kerala directed the 5th respondent to approach the competent authority under the Conservation Act for permission under Section 40(2) of the said Act and then approach the District Environmental Impact Assessment Authority (DEIAA) with proper application and only after considering the directions issued by the Hon'ble High Court, the District Environmental Impact Assessment Authority (DEIAA) has granted the Environmental Clearance (EC). According to them, the appeal deserves no merit.
7. The 4th respondent also filed counter affidavit more or less adopting the contentions of the 3rd respondent and also justifying the issuance of the Environmental Clearance (EC) by the District Environmental Impact Assessment Authority (DEIAA) being the Chairman of DEIAA.
8. Heard Mr. Shibu Varghese counsel appearing for the applicant/appellant, Mrs. M. Sumathi counsel appearing for 1st respondent, Mr. E.K. Kumaresan counsel appearing for respondents 2 to 4 and Mr. Baby Kuriakose counsel appearing for 5th respondent.
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9. The learned counsel appearing for the applicant/appellant submitted that the delay has been properly explained and there was no undue delay and in fact, they have filed the appeal before the Principal Bench of National Green Tribunal, New Delhi on 26.04.2019. But it was returned with a direction to file the same before this Bench and thereafter, it was filed before this Bench and that was the reason for the delay.
10.On the other hand, the learned counsel appearing for the 5 th respondent vehemently opposed the application on the ground that paper publication was effected much earlier. So, that will give the date of knowledge of issuance of Environmental Clearance (EC). Further, she is not a stranger but a close relative to the 5th respondent and she was well aware of the activities of the 5th respondent and also the conduct of the quarry. So, the delay has not been properly explained and the learned counsel had relied on the decisions reported in Nature Club of Rajasthan (NGO) Vs. Union of India and Ors., MANU/GT/0025/2018 in Appeal No. 58 of 2018 (M.A. Nos. 628 & 629 of 2018) dated 22.11.2018 of National Green Tribunal, Principal Bench, Paryavaran Bachav Samiti Vs. Ultratech Cement Limited & Ors. in M.A. No.702/2018 in Appeal No.68/2018 reported in MANU/GT/0012/2019 dated 13.02.2019, Sunil Kumar Samanta Vs. West Bengal Pollution Control Board in M.A. No.573/2013 in Appeal No.67/2013 reported in MANU/GT/0074/2014 dated 24.07.2014, The Commissioner of Sales Tax, U.P., Lucknow Vs. M/s. Parson Tools and Plants, Kanpur (1975) 4 SCC 22, Chhattisgarh State Electricity Board Vs. Central Electricity Regulatory Commission & Ors. (2010) 5 SCC 23, Union of India Vs. Popular Construction Company (2001) 8 SCC 470 and P.K. Ramachandran Vs. State of Kerala & Anr. (1997) 7 SCC 556 in support of his case. Other Page 5 of 12 counsel appearing for other respondents also supported the submissions of the counsel for 5th respondent.
11.It is an admitted fact that the Environmental Clearance (EC) in this case was granted on 07.12.2018 and admittedly, it was uploaded in the official portal of the issuing authority only on 26.03.2019. The project proponent had published the fact regarding the issuance of Environmental Clearance (EC) on 14.12.2018 in the local newspapers.
12.It is also seen from the file that the appeal was originally filed before the Principal Bench of National Green Tribunal, New Delhi on 26.04.2019 and it was seen filed before this Bench on 27.05.2019 and thereafter, it was returned for curing defects and ultimately, represented on 07.09.2019 and lastly, it was represented on 10.07.2019 and thereafter, it was numbered by this Bench.
13.It was alleged in the application that she will have to consult a lawyer in New Delhi and collected certain materials and thereafter, filed the appeal before the Principal Bench and it was returned as the appeal will have to be filed before the Southern Zone Bench and accordingly, it was filed before this Bench.
14.There is no dispute regarding the dictum laid down in the decisions relied on by the counsel appearing for the 5th respondent regarding the discretion to be exercised by the Court in the matter of condoning the delay. In all these decisions, discretion has been given to the Court to exercise the same in a judicious manner and if the Court is satisfied that the delay was not deliberate or wilful, but reasonable, then Court can always incline to condone the delay.
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15.It is also settled law that under Section 16 of the National Green Tribunal Act, 2010, the date of knowledge is not the date from which the limitation has to be reckoned for filing the appeal, but it is from the date of communication. The question regarding what is communication has been considered by the Principal Bench of National Green Tribunal in several matters and ultimately held that, it is the date on which it was uploaded by the issuing authority or by the project proponent and not only merely uploading, but it must be available uninterruptedly for downloading the same to enable the parties to proceed against the same as the date to be reckoned as the date of communication as the starting point of limitation.
16.So, the date will have to be reckoned not from the date of issuance of the Environmental Clearance (EC) namely, 07.12.2018 or on the date of publication made by the project proponent namely, 14.12.2018 but only from the date on which it was uploaded and available uninterruptedly for downloading for the parties who want to challenge the order.
17.Further, in this case, it has been seen that the appeal was filed before the Principal Bench of National Green Tribunal on 26.04.2019 i.e., 1 (one) day after the last date for filing the appeal. It is also clear from the endorsement that it has been returned to be presented before this Bench and it was represented before this Tribunal originally on 27.05.2019 and thereafter, it was returned for some defects and ultimately, after curing the defect on several occasions, it was represented on 10.07.2019 and thereafter, it was numbered. So, the delay in filing the appeal can be taken only as 32 days as contended by the counsel appearing for the applicant/appellant. Page 7 of 12
18.Further, in the recent decision in Sridevi Datla Vs. Union of India & Ors. which was taken up by the appellant in that case against the order passed by the Tribunal in M.A. No.231 of 2017 in Appeal No.18/2020 as Civil Appeal No.3136 of 2020 dated 31.07.2020 holding that the appeal was filed beyond 90 days, as it was filed on the 91st day and also after holding that the delay of even 90 days has not been properly explained, but the Hon'ble Apex Court had observed that this Tribunal, while considering the delay condonation, should not have taken such a pedantic view that each day delay had not been properly explained, especially when the substantial environmental issues have been raised and set aside the order passed by this Tribunal and condoned the delay in filing the appeal and sent back the matter to this Tribunal to consider the appeal on merit.
19.So, if the principle laid down in the above decision has been followed, the Court must be liberal in considering the condonable period of delay in filing the appeal and an opportunity must be given to the parties to meet the case on merit, instead of dismissing the appeal on technical ground of limitation.
20.In this case, the applicant/appellant had challenged the jurisdiction of District Environmental Impact Assessment Authority (DEIAA) in granting Environmental Clearance (EC), as it was granted after the Principal Bench had set aside the EIA Notification dated 15.01.2016 partially in Satendra Pandey Vs. Ministry of Environment, Forests & Climate Change (MoEF&CC) & Anr.
21.So under such circumstances, since such a serious jurisdictional issue has been raised, this Tribunal feel that it is not proper to deny the opportunity for the appellant to meet the case on merit. So, this Tribunal is convinced that reasons stated by the applicant/appellant are sufficient and convincing and Page 8 of 12 the same has to be condoned for giving an opportunity for the appellant to meet the case on merit.
22.So, this interlocutory application (I.A. No.17/2019) is allowed and the delay of 32 days in filing the appeal is condoned. I.A. No. 17 of 2019 (SZ) is disposed of accordingly.
Sd/-
..................................J.M. (Justice K. Ramakrishnan) Sd/-
..............................E.M. (Shri. Saibal Dasgupta) I.A. No.17/2019 in Appeal No.31/2020, Apl. Dy. No.59/2019 09th April, 2021. Mn.
Page 9 of 12 Item No.6:
BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Appeal No. 31 of 2020 (SZ) & I.A. No.17 of 2019 (SZ) Appeal Dy. No.59 of 2019 (SZ) (Through Video Conference) IN THE MATTER OF:
Jaya Mathachan W/o. Mathachan, Residing at Mangaly House, Manjapra Village, Manjapra P.O.683581, Aluva Taluk, Ernakulam District, Kerala State. ...Appellant(s) Versus Ministry of Environment, Forests & Climate Change, Represented by its Secretary, Jor Bagh, New Delhi - 100 003 and Ors. ...Respondent(s) Date of hearing: 09.04.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER For Appellant (s): Mr. Shibu Varghese.
For Respondent(s): Mrs. M. Sumathi for R1.
Mr. E.K. Kumaresan for R2 to R4.
Mr. Baby Kuriakose for R5.
ORDER
1. The delay in filing the appeal has been condoned today as per order in I.A. No.17/2019(SZ) by a separate order. Since the jurisdiction of the Page 10 of 12 issuing authority has been raised as the question of law in the appeal, we feel that it is necessary to admit the appeal and hear the same on merit.
So, the appeal is admitted.
2. The counsel appearing for respondents in the delay condonation application have proposed to appear in the appeal also. So, there is no necessity to issue fresh notice to the respondents in the appeal, as the learned counsel appearing for the respondents have proposed to appear for the respondents in the appeal as well. So, service is complete in the appeal as well.
3. The learned counsel appearing for the 5th respondent submitted that a Civil Appeal is pending before the Hon'ble Apex Court as Civil Appeal No.3799-3800 of 2019 (Union of India Vs. Rajiv Suri & Ors.) against the order of the Principal Bench of National Green Tribunal partially setting aside the EIA Notification, 2016 in respect of constitution of District Environmental Impact Assessment Authority (DEIAA) for considering the environmental issues.
4. While admitting the appeal, there was a stay granted by the Hon'ble Apex Court, directing the National Green Tribunal not to proceed with the coercive steps against the officer of the departments in execution. Page 11 of 12
5. So under such circumstances, since the civil appeal is pending before the Hon'ble Apex Court against the order passed by the Principal Bench, setting aside the establishment of District Environmental Impact Assessment Authority (DEIAA) to consider the question of issuing Environmental Clearance (EC) of certain category, we feel it appropriate to adjourn the case for some more time, till the matter is disposed of by the Hon'ble Apex Court, as it may have some impact on the decision to be taken by this Tribunal in the appeal.
6. The parties are directed to file their respective responses to the allegations made in the appeal memorandum to this Tribunal on or before 28.05.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules.
7. For completion of pleadings and for hearing, post on 28.05.2021.
Sd/-
..................................J.M. (Justice K. Ramakrishnan) Sd/-
..............................E.M. (Shri. Saibal Dasgupta) Appeal No.31/2020 & I.A. No.17/2019 Apl. Dy. No.59/2019 09th April, 2021. Mn.
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