National Green Tribunal
Consumer Federation vs Union Of India & Ors on 30 April, 2012
BEFORE THE NATIONAL GREEN TRIBUNAL
NEW DELHI
(PRINCIPAL BENCH)
MISC. APPLICATION NO. 21of 2012
ARISING OUT OF
APPEAL NO. 33 of 2011
In the matter of:
1. CONSUMER FEDERATION TAMIL NADU (REGD.)
Represented by Executive Secretary M. Nizamudeen
72, Netaji Road, Cuddalore - 907001
Tamil Nadu
APPELLANT
VERSUS
1. UNION OF INDIA & 5 OTHERS
Through the Secretary,
Ministry of Environment and Forests
Paryavaran Bhawan, CGO Complex
Lodhi Road, New Delhi - 110003
2. The Chairman / Member - Secretary
Tamil Nadu Pollution Control Board
76, Mount Road, Annasalai, Guindy
Chennai
3. The Collector
Cuddalore District
Cuddalore Tamil Nadu
1
4. The District Engineer
Tamil Nadu Pollution Control Board
Cuddalore - 2, Tamil Nadu
5. SRM Energy Ltd
Project Office
88, Anmol Palani - III - Floor
GN Chetty Road
T. Nagar, Chennai-600017
6. SRM Energy Administrative Office, Mumbai
601, Pressman House
70-A Nehru Road, Ville Parle (E)
Mumbai-400099
RESPONDENTS
Counsel for Applicants:
Mr. Aagney Sail
Counsel for Respondents:
Ms. Neelam Rathore
Mr. A. Prasanna Venkat
Mr. Dinesh Rastogi
ORDER
PRESENT:
Justice A.S. Naidu (Acting Chairperson) Dr. G. K. Pandey (Expert Member) ......................................................................................
Dated 30TH April, 2012 ......................................................................................
The Order dated 18th May, 2011, granting Environmental Clearance (EC) to M/s SRM Energy Limited for installation of 3x660 MW Super-Critical Imported Coal Based Thermal Power 2 Plant, at villages Poovalai, Alamelumangapuram and adjoining Palavuttanan, Vilangipattu, Manikollai, of Chidambaram Taluk, in CuddaloreDistt., in Tamil Nadu is assailed in Appeal no. 33 of 2011. The said Appeal was filed on 20th November, 2011 along with application for condonation of delay. The said application is the subject matter of this Misc. case.
2. In paragraph 2 of the Application, the Appellant has categorically admitted that the order granting EC dated 18th May, 2011 was communicated by Respondent no. 5 vide letter dated 6th June, 2011 and was received by the Appellant on 7th June, 2011. The said order it appears was also published in newspaper on 15th June, 2011.
3. After coming to know or the order granting EC, it is stated, the appellant filed an application under the Right to Information Act, seeking certain information.
4. According to the Appellant, the Respondent no. 1 adopted deli-dilly tactics in furnishing all the information sought for and due to lack of information, the appellant was prevented from preferring an appeal within the time prescribed. It appears that the appeal was initially filed in the month of November, 2011 but then the same was not registered as the fees required Under Section 12 or the National Green Tribunal Act, 2010, was not deposited and also there were some other defects. After receiving notice from the Tribunal, the appellant took 3 steps for removal of the defects and finally the appeal was registered on 29th November, 2011. According to the appellant, there were a delay of 69 days and the same could not be attributed to the appellant who was pursuing the lis diligently.
5. After receiving notice, a preliminary reply has been filed on behalf of Respondent no. 1, repudiating the averments made in the petition for condonation of delay. According to Ms. Rathore, the delay in filing the appeal is not 69 days, on the other hand, the same is 99 days. Relying upon the proviso to Section 16 of the National Green Tribunal Act, 2010, Ms. Rathore submitted that under no circumstances, a delay of more than 90 days can be condoned and that this Tribunal lacks the jurisdiction to entertain any appeal, filed after 90 days from the date of Order, and as such the appeal should be dismissed on that ground alone.
6. The application for condonation of delay has set out the reasons as to why the Appellant could not file the appeal within the period of 30 days from the date of receipt of the order granting EC. The reasons, for which the appeal could not be filed, even thereafter, till 14th September, 2011 are also lucidly described in the Memorandum of Appeal. Explanation for not approaching this Tribunal in time has also been set out vividly. After going through the reasons assigned, we were initially satisfied and inclined to take a liberal view and condone the delay, but then Section-16 of the National Green Tribunal 4 (NGT) Act, 2010 has circumvented the power of this Tribunal from entertaining an appeal filed after thirty plus sixty i.e. ninety days there by creating an emliorgo in condoning the delay. For the sake of brevity, relevant provision of Section-16 dealing with limitation is quoted herein below:
"Within a period of 30 days from the date on which the order or decision or determination is communicated to him, prefer an Appeal to the Tribunal.
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this Section, within a further period, not exceeding sixty days".
7. Admittedly, the Order impugned in the appeal was passed on 18th May, 2011, the time prescribed for preferring an appeal as per Section-16 being thirty days, the same should have been filed on or before 17th June 2011. In consonance with the proviso of Section 16, if the Appellant is able to satisfy that he was prevented by sufficient cause from filing the appeal within the said period, this Tribunal can allow the appeal to be filed within a further period not exceeding sixty days. Thus, the last date for filing of the appeal was 5th September, 2011. The 5 appeal was however, filed on 14th September, 2011, thus, there is a delay of almost eight days beyond ninety days.
8. Mr. Aagney Sail, Learned Counsel, for the appellant referring to the Rio-declaration and Article-21 of the Constitution of India, submitted that a technical provision like limitation should not prevent a person from exercising his right as well as his duty to seek redressal when environment is adversely affected and or there is likely hood or damage being caused to the environment.
On the other hand, according to Ms. Rathore, Learned Counsel for MoEF, the provision of limitation under the NGT Act, 2010 having been couched in the negative form and no appeal can be entertained beyond the period described under the Act. However, it could be seen that MoEF has taken almost 20 days in communicating the EC to the appellant.
The question with regard to the period with in which appeal can be filed, was before this Tribunal in the case of A.S. Mani vs. State Level Environment Assessment Agency (disposed off on 27th March, 2012). In the said case this Tribunal held as follows:
"....... Be that as it may, the language of Section- 16 of the NGT, Act is very explicit. It clearly stipulates the period of limitation for filing of an Appeal to be 6 thirty days and further mandates that the Tribunal may, on given circumstances, extend the time for filing for a further period not exceeding sixty days. The language used thus, makes the position very explicit to the extent that the legislature intended the Tribunal to entertain the Appeal by condoning the delay only upto sixty days after the expiry of thirty days, which is the normal period for preferring an Appeal. Therefore, there is complete exclusion of Section-5 of the Limitation Act. See: "Singh Enterprises Versus, Commissioner of Central Exercise, Jamshedpur and others, (2008) 3 SCC-70 and Ram Sunder Ram Versus Union of India and Others, (2007) 13 SCC-255".
"The proviso to Section-16 of the NGT Act unambiguously makes the position crystal clear that the Tribunal, has no power to allow the Appeal to be entertained beyond the period of thirty plus sixty i.e. ninety days on any account. In other words an Appeal before the Tribunal is required to be filed within thirty days from the date of the communication of the decision or order. If the Tribunal is satisfied that the Appellant was prevented by sufficient cause, it can allow the Appeal to be filed within a further period, not exceeding sixty days. The language used in the Section thus makes the position crystal clear 7 that the legislature intended the Tribunal to entertain the Appeal only by condoning the delay up to sixty days after expiry of thirty days and not thereafter. The said being the intention of the legislature, the Tribunal has no jurisdiction to condone the delay after ninety days......"
9. Mr. Aagney Sail relying upon judgments of the Hon'ble Supreme Court in the cases of -
- Hukumdev Narain Yadav Vs. Lalit Narain Mishra- (1974) 2 SCC 133. Mukri Gopalan Vs. Cheppilat Puthanpurayil - (1995) 5 SCC 5. Rani Kusum Vs. Kanchan Devi - (2005) 6 SCC 705. State of Madhya Pradesh Vs. Anshuman Shukla-(2008) 7 SCC 487. Commissioner of Customs & Central Excise Vs. Hongo India Pvt. Ltd. - (2009) 5 SCC 791 - 3 judges bench. Chhattisgarh State Electricity Board Vs. Central Electricity Regulatory Commission - (2010) 5 SCC 23, contended that the litigation under the NGT Act, 2010 being special of its character this Tribunal should take a liberal view and should not dismiss an appeal on technical ground of limitations.
It is further submitted that the environmental issues are best handled with the participation of all concerned citizens therefore each individual should have an appropriate right to approach this Tribunal for safeguarding the environment. A 8 barrier cannot be created from participating in the decision making process and or protecting the environment on mere technical grounds.
It is well settled that a Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly, if there is a defect or an omission in the words made by the legislature, the Court would not go to its aid to correct or make up the deficiency. In other words, the Court would not add words to a Statute or read words into it which are not there, especially when the literally reading produces an intelligible result. See Dadi Jagannadham Vs Jammulu Ramulu & Ors., (2001) 7 SCC 71.
10. We have diligently considered the submissions advanced.
The Tribunal being a creature under a Statute cannot act beyond the provisions contemplated in the Statute. We carefully went through each of the decisions referred to supra which deal with the powers of the Hon'ble Apex Court. We are conscious that this Tribunal does not passes the extra ordinary power vested under Article 34 of the Constitution nor it can exercises the powers under Article 226 or 227 of the Constitution. The language of Section-16 of the NGT Act, 2010 is very explicit and clearly stipulates the period of limitation for filing an appeal to be thirty days from the date of communication of the Order. The Act further empowers the Tribunal, on given circumstances, to entertain appeal filed 9 within a period not exceeding sixty days thereafter, the language used by the Statute is unambiguous and clear, and is binding.
11. The legislature in its wisdom having explicitly provided the period of limitation and a bar not to entertain any Appeal after (30+90 = 90) ninety days this Tribunal, constituted under the said Act, cannot expand the period of limitation any further. In other words, the Tribunal can condone delay only up to sixty days after expiry of thirty days, if it is satisfied with the reasons assigned. Thus, there is a complete exclusion of Section-5 of the Limitation Act. That apart, the period prescribed under the NGT Act, 2010, which is a special Statute, shall over ride normal acts.
12. Consequently, the delay of more than ninety days cannot be condoned under Section-16 of the NGT Act, 2010. Accordingly, this application for condonation of delay is dismissed, so also the Appeal.
Dr. G. K. Pandey Justice A.S. Naidu
Expert Member Acting Chairperson
Dharamvir
30th April, 2012
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