National Green Tribunal
R. Sreedhar vs 1. Union Of India on 19 July, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
Appeal No.13/2019/EZ
(I.A. No.77/2019/EZ)
IN THE MATTER OF:
R. SREEDHAR
Resident of: A-1/39, 2nd Floor,
Freedom Fighter Colony,
IGNOU Road, Gate No.1,
Neb Sarai, New Delhi
....Appellant(s)
Versus
1. UNION OF INDIA
Ministry of Environment, Forests and Climate Change
(Through the Secretary),
Indira Paryavaran Bhawan, Jor Bag Road,
New Delhi-110003
2. ADANI POWER (JHARKHAND) LTD.
Through the Managing Director,
Adani House, Near Mithakhali Circle,
Navrangpura, Ahmedabad-380009
3. STATE OF JHARKHAND
Through Chief Secretary,
Project Bhawan, Doranda,
Ranchi-834002
4. JHARKHAND POLLUTION CONTROL BOARD
Through Member Secretary,
H.E.C., Durwa, Ranchi-834004
....Respondent(s)
COUNSEL FOR APPELLANT:
Mr. Rahul Choudhary, Advocate a/w
Mr. Kaustav Dhar, Advocate
COUNSEL FOR RESPONDENTS:
Mr. Debasish Ghosh, Advocate for R-1,
Mr. Pinaki Misra, Sr. Advocate a/w
Mr. Mahesh Agarwal, Advocate and
Mr. Arshit Anand, Advocate for R-2,
Ms. Aishwarya Rajyashree, Advocate for R-3,
Mr. Surendra Kumar, Advocate for R-4
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JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On: - 12th July, 2022 Pronounce On: - 19th July, 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 learned Counsel for the Appellant and Mr. Pinaki Misra, learned Senior Counsel assisted by Mr. Mahesh Agarwal, learned Counsel and Mr. Arshit Anand, learned Counsel for Respondent No.2 and Mr. Debasish Ghosh, learned Counsel for Respondent No.1, Ministry of Environment, Forests and Climate Change and perused the documents on record.
2. This Appeal has been filed by the Appellant seeking the following reliefs: -
"(a) Quash the amended Environmental Clearance granted by the Respondent No.1 vide letter No.J-13012/01/2016 IA.I (T) dated
03.09.2019 in favour of Respondent No.2.
(b) Quash the Environmental Clearance granted by the Respondent No.1 dated 31.08.2017 in favour of Respondent No.2.
(c) Direct for a comprehensive impact assessment of the project including the environmental impact due to extraction of water from the Ganga and direct for a fresh EIA Report and Public Consultation based on the said EIA.
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(d) Direct for an inquiry against the MOEF&CC and its officials for illegal grant of amended EC without an Environmental Impact Assessment and Public Consultation."
3. The Appeal is also directed against an amended Environmental Clearance (EC) dated 03.09.2019 granted to the Respondent No. 2, M/s. Adani Power (Jharkhand) Ltd., (Project Proponent) by the Ministry of Environment, Forest and Climate Change (MoEF&CC), permitting drawl of water from the river Ganga for the Thermal Power Project set up by the said Respondent No. 2.
4. According to the Appellant, earlier Appeal No.47/2018 had been filed by him as the Project Proponent, instead of drawing water from River Chir as per the Environmental Clearance dated 31.08.2017 had attempted to draw water from the River Ganga. That Appeal was disposed off by the National Green Tribunal vide order dated 07.01.2019 with liberty to the Appellant to file a fresh Appeal. Thereafter, Appeal No. 02/2019 was filed primarily on the ground that the Project Proponent had changed the scope of a crucial aspect of the project relating to drawing of water from River Ganga to meet the requirements of the Thermal Power Plant regarding nothing which had been mentioned in the EIA Report that was considered by the Expert Appraisal Committee (EAC) for appraisal.
5. When Appeal No. 02/2019 was being heard, it had been submitted on behalf of the project proponent that an application for amendment of the Environmental Clearance had been submitted before the MoEF&CC altering the source of water for the project 3 from River Chir to River Ganga and that the proposal was still pending consideration of the Ministry and that, until such time the application was decided by the MoEF&CC, cause of action to file appeal could not be said to have arisen. In view of this, the Appellant was permitted to withdraw the appeal with liberty to the Appellant to file appeal afresh. On 03.09.2019 the impugned amended Environmental Clearance was granted to the Project Proponent changing the source of water from River Chir to River Ganga. The present Appeal has thus been filed in terms of the liberty granted earlier.
6. The Appeal has been preferred mainly on the ground that the Project Proponent had changed the scope of a crucial aspect of the project relating to drawing of water from River Ganga to meet the water requirements of the Thermal Power Plant though the same was never mentioned in the EIA Report nor placed before the public during Public Hearing; the justification given for change of scope of the project was wrong and in variance with the EIA on a number of issues; although the Source Sustainability Study for drawl of water from River Ganga for the proposed Thermal Power Plant at Godda, Jharkhand, July, 2019 got prepared by Adani Power (Jharkhand) Limited was placed before the EAC in its meeting held in March, 2019 and was considered, the said report, however, was never made a part of the draft EIA Report to be placed before public in the Public Hearing.
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7. The Appellant also raised other issues assailing the Environmental Clearance granted to the Project Proponent, Respondent No.2, which were noted by the Tribunal at the time of admission as under: -
(i) Impact on fauna of the Ganga at the Sahebganj and nearby area where there is presence of Gangetic Dolphins, Otters and many other wildlife species which have not been considered in the Source Sustainability Study Report:
(ii) The Source Sustainability Study Report is also not reliable for a several reasons mentioned in this Appeal:
(iii) Site selection for the project is in violation of siting criteria prescribed by the MoEF&CC:
(iv) Failure on the part of the Project Proponent to disclose vital information while submitting Form I:
(v) Failure of the EAC to examine the Project, EIA Report thoroughly which had been prepared without consideration of relevant and material facts/studies:
(vi) The requirement to implement zero liquid discharge system having not been met:
(vii) The proposed project not confirming to fuel linkage, etc.
8. The Tribunal issued notice on the Appeal but on the delay condonation application, I.A. No.77/2019/EZ, it observed as follows: -
"12. In view of the facts and circumstances set out in the application, delay in filing the Appeal is condoned subject to objections that may be raised by the respondents."5
9. I.A. No.77/2019/EZ is still pending. Learned Counsel for the Appellant submitted that since the delay has been condoned, the matter should be heard on merit on the other issues.
10. A perusal of the previous order of the Tribunal dated 28.05.2020 would however go to show that in the I.A. No.77/2019/EZ on the question of delay, the Tribunal had passed a conditional order and the delay had been condoned only subject to objections which may be raised by the respondents.
11. Mr. Pinaki Misra, learned Senior Counsel and Mr. Debasish Ghosh, learned Counsel for the respondents have raised a preliminary objection that the Appeal is barred by limitation as it has been filed beyond the period of 30 days. The learned Counsel also submit that the cause shown in the I.A. No.77/2019/EZ cannot be accepted to be 'sufficient cause'. The learned Counsel submitted that I.A. No.77/2019/EZ seeking condonation of delay has not been disposed of and is still pending and therefore, the question of limitation must be determined as a preliminary issue as it goes to the root of the jurisdiction of the Tribunal so far as exercise of power to adjudicate is concerned. The learned Counsel submit that Order 14 Rule 2 CPC introduced by way of amendment in 1976 in the Civil Procedure Code and which came into force on 01.02.1977 provides that the court shall pronounce judgment on all issues but where issues both of law and of fact arise in the same suit, and the court is of the opinion that the case or any part 6 thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
12. Mr. Pinaki Misra, learned Senior Counsel further submitted that though the strict rules of procedure under the Civil Procedure Code do not apply to proceedings before the National Green Tribunal Act, 2010 but the legal concepts and principles relating to procedure would certainly be applicable and it cannot be said that the Tribunal is completely bereft of the power to decide the issue of limitation as a preliminary issue and the Tribunal is empowered to devise its own procedure but the principles of law guiding the procedure would apply to proceedings before the Tribunal, since the National Green Tribunal Act, 2010 itself provides that the proceedings before the Tribunal shall be judicial proceedings and in a case where the appeal has been admittedly filed beyond limitation for which an effort has been made by appellant to show 'sufficient cause' the question of limitation must be examined first before other issues are taken up for consideration.
13. Mr. Misra further submitted that the Proviso to Section 16 of the National Green Tribunal Act, 2010 provides that the Tribunal 7 may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period of 30 days for filing of such appeal, allow it to be filed under this section within a further period not exceeding 60 days. It is therefore, submitted that the question whether the appellant has been able to show sufficient cause or not has to be determined by the Tribunal as a preliminary issue. The learned Counsel submits that even without alluding to the affidavits which may have been filed by the Respondents, the question of limitation and existence of 'sufficient' cause can be determined by the Tribunal from the pleadings in the memo of appeal and the cause shown in the I.A. No.77/2019/EZ.
14. Mr. Rahul Choudhury, learned Counsel for the Appellant however submitted that once affidavits had been invited and the delay was condoned by the Tribunal though subject to the objections which may be filed by the respondents, the question of limitation cannot be decided as a preliminary issue.
15. The provisions of Rule 2 Order 14 may be extracted herein below: -
"2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the court, or 8
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the order issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."
16. The Hon'ble Supreme Court in (2020) 6 SCC 557, Nusli Neville Wadia vs. Ivory Properties and Ors., in Paragraph 13 held as under:-
"13. A significant departure has been made in the amended provisions contained in Order 14 Rule 2. Now it mandates the court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue. The intendment is to avoid remand in the appealable case for deciding the other issues. In case the necessity arises, Order 14 Rule 2(2) enables the court to decide the issue of law as a preliminary issue in case the same relates to (1) the jurisdiction of the court, or (2) a bar to the suit created by any law for the time being in force. ..."
17. The Hon'ble Supreme Court also explained the term jurisdiction in Paragraph 20 as herein under: -
"20. Jurisdiction is the power to decide and not merely the power to decide correctly. Jurisdiction is the authority of law to act officially. It is an authority of law to act officially in a particular matter in hand. It is the power to take cognizance and decide the cases. It is the power to decide rightly or wrongly. It is the power to hear and determine. Same is the foundation of judicial proceedings. It does not depend upon the correctness of the decision made. It is the power to decide justiciable controversy and includes questions of law as well as facts on merits. Jurisdiction is the right t hear and determine. It does not depend upon whether a decision is right or wrong. Jurisdiction means power to entertain a suit, consider merits, and render binding decisions, and "merits" means the various elements which enter into or qualify plaintiff's right to the relief sought. If the law 9 confers a power to render a judgment or decree, then the court has jurisdiction. The court must have control over the subject- matter, which comes within classification limits of law under which the court is established and functions."
18. In Paragraph 37, the Hon'ble Supreme Court held that there is a difference between the existence of jurisdiction and the exercise of jurisdiction. Paragraph 37 of the judgment reads as under: -
"37. There is a difference the existence of jurisdiction and the exercise of jurisdiction. In case jurisdiction is exercised with material irregularity or with illegality, it would also constitute jurisdictional error. However, if a court has jurisdiction to entertain a suit but in exercise of jurisdiction, a mistake has been committed, though it would be a jurisdictional error but not lack of it. It may be a jurisdictional error open for interference in appellate or revisional jurisdiction."
19. We may also extract Paragraphs 40 & 45 of the judgment which would be relevant for proper appreciation of the case. Paragraph 40 & 45 read as under: -
"40. In a case, jurisdictional facts, as well as adjudicatory facts, may arise. When jurisdictional facts to entertain are missing, the court/tribunal cannot act at all. In the case of adjudicatory facts, the court can proceed with the trial of the case exercising jurisdiction, and the same implies that the court has the jurisdiction to deal with the matter, that is called the power to examine on merits. Adjudication is the power to proceed to consider on merits.
45. It is apparent that when a claim is dismissed as barred by limitation, no doubt the refusal is within the realm of exercise of jurisdiction by the court or tribunal. It cannot be said that the court has refused to exercise the jurisdiction to go into the merits by a wrong decision dismissed the case on the ground of limitation. ..."10
20. By way of conclusion in Paragraphs 88 & 89, the Hon'ble Supreme Court held as under: -
"88. Given the discussion above, we are of the considered opinion that the jurisdiction to entertain has different connotation from the jurisdictional error committed in exercise thereof. There is a difference between the existence of jurisdiction and the exercise of jurisdiction. The expression jurisdiction has been used in CPC at several places in different contexts and takes colour from the context in which it has been used. The existence of jurisdiction is reflected by the fact of amenability of the judgment to attack in the collateral proceedings. If the court has an inherent lack of jurisdiction, its decision is open to attack as a nullity. While deciding the issues of the bar created by the law of limitation, res judicata, the Court must have jurisdiction to decide these issues. Under the provisions of section 9A and Order XIV Rule 2, it is open to decide preliminary issues if it is purely a question of law not a mixed question of law and fact by recording evidence. The decision in Foreshore Cooperative Housing Society Limited (supra) cannot be said to be laying down the law correctly. We have considered the decisions referred to therein, they are in different contexts. The decision of the Full Bench of the High Court of Bombay in Mehar Singh (supra) holding that under section 9A the issue to try a suit/jurisdiction can be decided by recording evidence if required and Kamalakar Shantaram (supra) has been correctly decided and cannot be said to be per incuriam, as held in Foreshore Cooperative Housing Society Limited (supra).
89. Section 2 of the Maharashtra Second Amendment Act, 2018 which provides that where consideration of preliminary issue framed under section 9A is pending on the date of commencement of the CPC, the said issue shall be decided and disposed of by the court under section 9A as if the provision under section 9A has not been deleted, does not change the legal scenario as to what can be decided as a preliminary issue under 11 section 9A, CPC, as applicable in Maharashtra. The saving created by the provision of section 2 where consideration of preliminary issue framed under section 9A is pending on the date of commencement of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018, can be decided only if it comes within the parameters as found by us on the interpretation of section 9A. We reiterate that no issue can be decided only under the guise of the provision that it has been framed under section 9A and was pending consideration on the date of commencement of the (Maharashtra Amendment) Act, 2018. The reference is answered accordingly."
21. In view of law laid down by the Hon'ble Supreme Court in Nusli Neville Wadia (supra), we may consider the question of limitation in the present case on the basis of the pleadings in the memo of Appeal and the averments made in the I.A. No.77/2019/EZ itself without adverting to the affidavits filed by the Respondents.
22. The Appellant had earlier filed Appeal No.47/2018, R. Sreedhar vs. Union of India & Ors. but subsequently on the request of the Appellant the Appeal was dismissed as not pressed with liberty to file fresh Application/Appeal vide order dated 07.01.2019. Order dated 07.01.2019 reads as under: -
"Original Application No. 171 of 2018 be detached from Appeal No. 47 of 2018.
List this matter on 7th February, 2019.Appeal No. 47 of 2018
At the outset, it has been brought to our notice by the Learned Counsel for the Appellant that the source of water in the instant project has been changed from river Chiri to river Ganga. Therefore, the substance of the Appeal has changed to a great 12 extent. In these circumstances, he has prayed that in order to bring subsequent development on record, he may be permitted to file a fresh Application/Appeal. He does not press the present Appeal.
Accordingly, Appeal No. 47 of 2018 is disposed of, with liberty as prayed by the Appellant.M.A. No. 493 of 2018
This Application does not survive for consideration as the main appeal itself stands disposed of.
M.A. No. 493 of 2018 stands disposed of accordingly."
23. The Appellant then filed as Appeal No.02/2019 which was also disposed of vide order dated 11.07.2019 on the request of the Appellant with liberty to file fresh Application/Appeal. Order dated 11.07.2019 reads as under: -
"1. This appeal has been preferred against the grant of environmental clearance for 2x800 MW Imported coal based Godda Thermal Power Project at Village Motia, Patwa, Gangta and Nayabad of Godda Block and Sondiha, Petbi, Gayghat, Ranganiya and Mali villages of Poraiyahaat Block, Distt. Godda, Jharkhand by M/s. Adani Power (Jharkhand) Limited vide order of Government of India, MoEF&CC dated 31.08.2017.
2. We may note that the same environmental clearance was challenged by way of an Appeal No. 47/2018 which was disposed of on 7.1.2019, after noticing that though the source of water for the project was stipulated to the river Chir, the project proponent sought a change to river Ganga. On account of the said change, substance of the appeal had changed and the appellant wanted to file a fresh application/appeal to bring subsequent development on record and did not press the said appeal. The said appeal was disposed of with liberty as sought by the appellant.13
3. Thereafter, the present appeal has been filed on 06.02.2019 on the same cause of action by stating that the source of River Ganga was never subject matter of appraisal by the EAC and, therefore, Ganga water could not be drawn.
4. The project proponent has filed a reply raising an objection to the maintainability on the ground that the project proponent had applied for amendment of environmental clearance dated 31.8.2017 in December, 2018 in the light of change of source of water from Chir river to River Ganga. The application is still pending and thus till the application is decided, there is no cause of action.
5. In view of the above, counsel for the applicant seeks permission to withdraw the application/appeal with the liberty already granted. We allow this prayer. The appeal is accordingly disposed of."
24. Thereafter, the present Appeal has been filed. From the request made by the Appellant while withdrawing his earlier two appeals what emerges is that the earlier Environmental Clearance dated 31.08.2017 was granted on the stipulation that water for the Project would be harnessed from River Chir but subsequently, the Project Proponent, Respondent No.2, proposed to harness water from River Ganga. Both the Appeals i.e. Appeal No.47/2018 along with original application therein and Appeal No.02/2019 along with interlocutory applications therein were withdrawn on the same ground. In fact, a perusal of the order dated 11.07.2019 of the Tribunal would show that before the Tribunal it was stated that the Appeal No.02/2019 was filed on 06.02.2019 on the same cause of action as the Appeal No.47/2018 by stating that the source of River Ganga was never the subject matter of appraisal by the EAC and, 14 therefore, Ganga water could not be drawn. Subsequently, the Project Proponent sought an amendment in the previous Environmental Clearance seeking change in the source of water from River Chir to River Ganga. Accordingly, fresh Environmental Clearance was granted on 03.09.2019. Therefore, so far as challenge to the Environmental Clearance granted by the MoEF&CC on 31.08.2017 in favour of the Respondent No.2 is concerned, the present Appeal is clearly barred by time being beyond 30 days or even the extended period of 60 days (upon showing sufficient cause) as per provisions of Section 16 (j) of the National Green Tribunal Act, 2010. Merely because the Appellant had sought liberty from the court to file fresh Application/Appeal that would not extend the period of limitation already granted in Section 16 (h) or the proviso thereto and the court would be required to examine as to whether the Appeal against the Environmental Clearance dated 31.08.2017 is within time or not. The present Appeal challenging the Environmental Clearance of 31.08.2017 having been filed on 27.11.2019 is clearly beyond 30 days as contemplated in Section 16
(h) or even the extended period of limitation of 60 days i.e. total 90 days, under the Proviso thereto and therefore, the Appeal is clearly barred by limitation so far as challenge to the Environmental Clearance dated 31.08.2017 is concerned.
25. So far as the challenge to the Environmental Clearance dated 03.09.2019 is concerned, a perusal of the Environmental Clearance would show that the same was uploaded on the website of the MoEF&CC on 03.09.2019 itself. Therefore, there would be a 15 presumption in law that the Appellant had knowledge of the amended Environmental Clearance on 03.09.2019 itself considering that he was prosecuting the grant of earlier Environmental Clearance to the same Project Proponent since his two appeals were withdrawn by him on the ground that the source of water had been changed from River Chir to River Ganga which attaches knowledge of that fact to the Appellant.
26. In paragraph 8 of his I.A. No.77/2019/EZ, the Appellant had stated that he acquired knowledge of the by Environmental Clearance dated 03.09.2019 only on 22.09.2019 while doing online search and came across an article dated 07.09.2019 titled "Jharkhand: Construction Begins in Adani's Godda Plant, Villagers Dejected". The present Appeal itself was filed on 27.11.2019 but the explanation for delay by the Appellant to show sufficient cause is that it took about two weeks to meet and carry out discussions within his group, with others and members of the affected local communities on and around the site as to what would be the local impact and future course of action all of which happened by about 06.10.2019. It is then stated that the Appellant began collating/collecting/analyzing all possible documents and research material for purposes of filing an Appeal under Section 16 (h) of the National Green Tribunal Act, 2010 and this exercise took another two weeks i.e. upto 20.10.2019 and thereafter, the Appellant sent the documents to certain technical experts which all took about another three weeks i.e. till 10.11.2019 and thereafter, it took another 7 days for legal discussions till 17.11.2019 and since the 16 Appellant was residing at Delhi, the Appeal could be prepared only by 25.11.2019 at Delhi and sent to Kolkata for filing in the National Green Tribunal, Eastern Zone Bench, Kolkata.
27. We may also note that the Appellant states that he is a freedom fighter residing at Delhi, as already admitted by him in his I.A. No.77/2019/EZ, thus, in any view of the matter, he is not the 'person aggrieved' as understood within the meaning of Section 16 of the Act, 2010, and cannot be said to be a 'person aggrieved', by the grant of Environmental Clearance dated 03.09.2019 to the Project Proponent in Jharkhand.
28. In paragraph 1 of memo of the Appeal, the Appellant has stated that he is a public spirited and socially motivated and environmentally vigilant citizen of the country and is involved in various social/environmental activities and has taken up legal proceedings in public interest before the competent courts of law, Paragraph 1 of the memo of Appeal under the heading "Brief Facts"
reads as under: -
"1. That Appellant is a public spirited and socially motivated and environmentally vigilant citizen of the country. The Appellant is involved in various social/environmental activities and has taken up legal proceedings in public interest before the competent courts of law including this Hon'ble Tribunal."
29. Thus, the Appellant is not a person residing in the area where the Project is proposed to be setup in Jharkhand and he cannot be said to be a 'person aggrieved' by the establishment of the project of the Project Proponent. We have already noted herein above that the 17 Appellant was actively pursuing this matter regarding grant of Environmental Clearance to the Project Proponent since the time of filing his Appeal No.47/2018. He was aware that the source of river was proposed to be changed from River Chir to River Ganga on which grounds he withdrew his two appeals i.e. Appeal No.47/2018 and Appeal No.02/2019. If a party was aggrieved by the grant of Environmental Clearance dated 03.09.2019 such aggrieved person had limitation of 30 days for filing the appeal laying challenge to the Environmental Clearance commencing from 03.09.2019. It cannot be accepted, and we are not inclined to accept the 'sufficient cause' shown by the Appellant for explaining the delay of further 57 days in filing the present Appeal on the ground that he came to know about the fresh Environmental Clearance only while searching online on 22.09.2019 although it had already been uploaded on 03.09.2019, therefore, the delay of 19 days does not stand explained. We are also not satisfied with the cause shown for explaining the subsequent two weeks for the Appellant to meet his group to access what would be the local impact and future course of action nor are we satisfied with the cause shown for explaining the delay of further two weeks till 20.10.2019 for collating/collecting/analyzing documents or a further delay of three weeks in consulting technical experts or a further delay of 7 days for legal discussions till 17.11.2019 between the Appellant and his lawyers and a further 8 days till 25.11.2019 for preparing the Appeal.
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30. Learned Counsel for the Appellant has relied upon the observations made by Hon'ble Supreme Court in (2021) 5 SCC 321, Sridevi Datla vs. Union of India & Ors., decided on 02.03.2021 particularly paragraph 29 thereof. Paragraph 29 of the said judgment is extracted herein below: -
"29. This court is of the opinion that there is merit in the appellant's argument. The respondents, especially, the project applicant, had urged that the appellant is an interested party, and cannot be called a public-spirited citizen, because she had opposed acquisition of land for the airport and therefore, was able to access legal advice at the High Court stage. There is, in our opinion, nothing in the NGT Act which excludes parties who would be directly affected by a project, that has environmental repercussions, from accessing the tribunal (NGT). Likewise, characterizing the nature of legal advice that can be accessed for challenging land acquisition, as similar to a challenge to environmental clearance which involved application of mind to technical issues in a detailed manner, would be unfair and simplistic. Scientific or technical support-apart from expert professional legal advice is necessary, if the NGT were to be approached. In these circumstances, this court is of the opinion that given the mandate of the NGT Act, the exercise of discretion, as was done in this case, to reject the appeal by dismission the application for condonation of delay, on the ground that no sufficient cause was shown, was erroneous and based on a narrow reading of the law. An appeal to the NGT in such matters is no ordinary matter; it has the potential of irrevocably changing the environment with the possibility of likely injury. Application of judicial mind by an independent tribunal in such cases, at the first appellant stage, is almost a necessity."
31. In that case, the submission was that the date of reckoning limitation was from 14.08.2017 when the MoEF&CC uploaded the decision on its website and the 90 days period within which the 19 Appeal was to be filed expired on 12.11.2017 which was a Sunday and therefore, the Hon'ble Supreme Court held that Sunday ought to have been ignored while computing limitation for filing the Appeal.
32. The observations made by the Hon'ble Supreme Court in Paragraph 27 of Sridevi Datla (supra) also require to be looked at. Paragraph 27 of the said judgment reads as under: -
"27. It is evident that the term sufficient cause is relative, fact dependant, and has many hues, largely deriving colour from the facts of each case, and the behaviour of the litigant who seeks condonation of delay (in approaching the court). However, what can broadly be said to be universally accepted is that in principle, the applicant must display bona fides, should not have been negligent, and the delay occasioned should not be such that condoning it would seriously prejudice the other party."
33. Thus, having regard to the observations in paragraph 27 of the judgment in Sridevi Datla, the behaviour of the litigant who seeks condonation of delay (in approaching the court) also needs to be examined while considering whether the Appellant had indeed been able to make out a sufficient cause for condonation of delay and he should not have been negligent.
34. The facts of the case of Sridevi Datla as outlined in paragraph 28 of the judgment may also be referred to. The stand of the Appellant was that the documentation appended to the Environmental Clearance granted to the Project Proponent was voluminous and expert as well as professional legal advice of the kind necessary to approach to the NGT was not available in the 20 State of Andhra Pradesh and correspondence with counsel in Delhi entailed some delay.
35. In the present case, the Appellant admittedly is a resident of Delhi; he is not the 'person aggrieved' by the setting up of the Project in question in Jharkhand; and he was well aware of the facts of the case since he was already prosecuting his earlier two appeals, Appeal No.47/2018 & Appeal No.02/2019, with regard to the same project of the Respondent No.2. Therefore, in our opinion the facts of the present case cannot be equated with the facts in the case of Sridevi Datla (supra).
36. For reasons aforesaid, we are not satisfied with the cause shown in the I.A. No.77/2019/EZ explaining the delay of 57 days, beyond the 30 days allowed for filing Appeal under Section 16(h) and this application is rejected on grounds of limitation.
37. In view of the above, Appeal No.13/2019/EZ is accordingly dismissed.
38. There shall be no order as to costs.
........................................ B. AMIT STHALEKAR, JM ........................................ SAIBAL DASGUPTA, EM Kolkata July 19, 2022 Appeal No.13/2019/EZ (I.A. No.77/2019/EZ) MN 21