National Green Tribunal
Dyaneshwar Vishnu Shedge vs Union Of India & Ors on 24 May, 2012
BEFORE THE NATIONAL GREEN TRIBUNAL
NEW DELHI
(PRINCIPAL BENCH)
MISC. APPLICATION NO. 19 OF 2012
ARISING OUT OF
APPEAL NO. 9 of 2012
1. Dyaneshwar Vishnu Shedge
R/o Mugaon, Taluka Mulshi
District Pune, Maharashtra
Appellant(s)/Applicant(s)/Petitioner
Versus
1. Union of India
Ministry of Environment & Forests
Through the Secretary
Paryavaran Bhavan, CGO Complex
Lodhi Road, New Delhi-110003.
2. Maharashtra Pollution Control Board
Through its Member Secretary
Kalpataru Point, 3rd and 4th Floor
Opp. Cine Planet, Sion Circle
Mumbai-400 022.
3. M/s Lavasa Corporation
Through the Chairman
Hincon House, 247 Park, LBS Marg
Vikhroli (West)
Mumbai-400083.
Respondent(s)
Counsel for Appellant:
Mr. Ritwick Dutta
Mr. Rahul Choudhary
Ms. Parul Gupta
1
Counsel for Respondents:
Ms. Neelam Rathore
Mr. Shekhar Naphde, Senior Advocate
Mr. Gaurav Joshi
Mr. Rishi Agrawal
Ms. Megha Mehta Agrawal
ORDER
PRESENT:
Justice A.S. Naidu (Acting Chairperson) Prof. Dr. R. Nagendran (Expert Member) .....................................................................................................................
Dated 24th May, 2012 ..................................................................................................
JUDGMENT BY THE BENCH The Environment Clearance (EC) dated 9th November, 2012, issued by the Ministry of Environment & Forests (MoEF) to M/s Lavasa Corporation Ltd., Respondent No.3 for the development of hill station, township at Village Munshi appertaining to Velhi Talukas, District Pune, Maharashtra is sought to be assailed in Appeal No. 9 /2012.
2. In consonance with Section 16 of the National Green Tribunal (NGT) Act, 2010 any person aggrieved by an order granting EC to any project, may within 30 days from the date on which the order or decision is communicated to him prefer an appeal before this Tribunal. Proviso to the said Section further stipulates that the Tribunal may, if it is 2 satisfied that the Appellant was prevented by sufficient cause from filing the Appeal within the said period i.e., thirty days, allow it to be filed within a further period not exceeding sixty days.
In the case in hand, the Appeal was filed on 6th February, 2012 assailing the order granting EC dated 19th November, 2011. Thus the same was filed after lapse of 30 days but then within ninety days. The Appellant being conscious of the said fact filed a petition for condonation of delay which has been registered as Misc. Case and is the subject matter of the present order.
3. The factual matrix of the case lies in a narrow compass and is stated herein below:-
The Appellant claims to be a project affected villager. According to him, several substantial questions relating to environment are involved, and if the project comes up, the right of the Appellant as well as other poor villagers living in the vicinity shall be affected under Article 21 of the Constitution, in as much as they will be deprived of clean environment and healthy life. The Appeal it is submitted also involves issues related to the failure on the part of the Respondents to fulfil fundamental duties guaranteed under Article 48 A of the Constitution, which mandates the Authorities to protect and improve the environment. The 3 action of the MoEF granting EC to the project it is alleged is not only arbitrary but also in violation of the principles enshrined under Article 14 of the Constitution of India. Referring to Article 51 A (g) of the Constitution it is stated that said Article casts a fundamental duty upon all the citizens of the country to protect and improve the environment and hence the Appeal has been filed. There are also several other allegations with regard to the faulty procedure adopted as well as de-relegation of Statutory provisions by the MoEF which according to the appellant goes to the root of the decision making process, consequently the EC granted suffers from the vice of non- consideration of relevant facts and law and cannot be sustained.
4. The delay in presenting the appeal has been explained in extenso in paragraph 2 to 5 of the Petition filed for condonation of delay. According to the Appellant, the delay of 59 days in filing the Appeal was unintentional. The delay had occurred as the project affected persons were not aware of the impugned order and its impact. After coming to know about it, they assembled and took a decision with regard to the further course of action for setting aside the order granting EC. It also took some time to the inhabitants, who belong to the lower strata of the society to understand the real impact of the order as the same was based on certain technical and environmental issues.
45. Further elucidating the reasons for delay it is stated that appellant came to know about the impugned order dated 9th November, 2011 about a week after i.e., on 15th November, 2011. But then, he was not able to procure the copy of the order. After deliberation among the villagers and project affected persons it was decided to obtain a copy of the impugned order taking help of a Learned Advocate, accordingly a Learned Counsel at Pune was contacted. As per the advice of the Learned Advocate, the appellant was able to download a copy of the EC dated 9th November, 2011, from the website of the MoEF only on 30th November, 2011.
6. After obtaining the copy, under the impression that Pune Zonal Bench of NGT has started functioning, the Appellant requested the Learned Counsel to prepare and file the Appeal. Learned Counsel tried to obtain instructions with regard to the facilities for filing Appeal at Pune, in view of the fact the NGT had held a Circuit Bench at Pune, but then it was found that filing of the cases were only possible at Delhi. Thereafter, on 21st of December, 2011, after arranging funds and other documents the appellant came to Delhi and consulted some Advocates who were not willing to file the Appeal as the Tribunal was closed. At last, on the last week of December, 2011, the appellant was able to finalize the draft through a Learned Counsel and presented the Appeal 5 on 6th February, 2012, in the Principal Bench of NGT at New Delhi.
7. Under Solemn affirmation the Petitioner has narrated the facts and given the dates explaining the delay and prayed to condone the delay of 59 days in filing the Appeal as there was no deliberate latches on the part of the appellant who was sacrosanctly and diligently pursuing the lis, all along to best of his ability.
8. After receiving notice, the Respondent No.3 has filed a detailed reply traversing each and every averment made in the petition for condonation of delay. According to Respondent 3 the Appellant has not come to the court with clean hands, being a close associate of Ms. Sunita SR who had challenged the project before the High Court, The Appellant was aware about the date when the EC was granted to the project and the delay being deliberate, requires no consideration. Further, it is averred that the grant of EC to Respondent No.3 by order dated 9th November, 2011, received wide publicity in the media and was published in a number of newspapers at Pune and thus the averment that the Appellant came to know about the impugned order only on 15th November, 2011 is not correct. Further, it is stated that the impugned order was uploaded on the website of the MoEF on 9th November, 2011 itself, 6 and nothing prevented the Appellant from downloading the same. The Appellant is an associate of several social activists, who were aware of the order and made statements in the media on the day when the order was passed i.e., 9th November, 2011 and soon thereafter. In short, according to Respondent No.3 the Appellant has suppressed vital facts and came up with a concocted false story and is thus not entitled to any discretionary relief. Number of documents were also enclosed to the reply to substantiate the stand taken by Respondent No.3.
9. To make the long story short, according to Respondent No.3 the Appellant was well aware of the project and having sold lands belonging to him for the purpose of the project, is estopped from raising an objection to the EC granted and oppose the project. The locus standi of the appellant to file the Appeal as well as maintainability of the Appeal is also strenuously contended before this Tribunal.
However, the only question which needs to be determined at this stage is with regard to condoning the delay in presenting the Appeal. The question of maintainability of the Appeal as well as locus standi of the appellant to prefer this Appeal, involve intricate questions of facts and law which can be dealt with only in course of hearing of the Appeal. Therefore, we refrain ourselves from 7 entering into the arena of controversy with regard to the maintainability of the Appeal on merits and or locus standi of the appellant to file this Appeal at this stage.
10. Admittedly, the Appeal has not been filed within thirty days of the impugned order. But then it has been filed within ninety days, thus, in consonance with the provision of Section 16 of the NGT Act, this Tribunal, if it is satisfied that the Appellant was prevented by sufficient cause from filing the Appeal, entertain the same, if the same is filed within 60 (sixty) days after 30 (thirty) days from the date of the order sought to be impugned.
11. As far as the explanation given by the Appellant that he approached and discussed with the local villagers and other project affected persons sought their approval and consent and thereafter travelled to Pune consulted an Advocate and on his advice downloaded the impugned order from the website of the MoEF and then proceeded to Delhi, contacted the Advocate and got the Appeal filed. A litigant is legitimately entitled to put forth in a proceeding like this and plead and explain the delay.
12. Respondent No.3 repudiating the stand taken by the Appellant tried to convince this Tribunal that the Appellant took active part in the movement initiated to stop project implementation. Since long he had contacts with the social 8 activists who are opposing the project, thus the plea of ignorance taken by the Appellant is only an afterthought, and is neither bonafide nor justified.
13. On consideration of the submissions advanced interse by the parties, we feel in a case like the present one, where the Environmental impact of the project on local population in terms of their environmental harm, has to be assessed, the approach of this Tribunal, especially set up for the said purpose, should be liberal and not "hyper-technical".
14. The nature of the disputes, as would be evident, from the aims and objective of the NGT Act, this Tribunal is expected to adjudicate upon, is not really a lis between the litigant parties and or adversary litigation. The jurisdiction of this Tribunal is necessarily a wider one whereby the impact of the decision granting EC vis-à-vis the effect thereof on the local community or environment in general and ecology has to be considered. The Tribunal is expected to adopt a broad and liberal approach rather than narrow and cribbed one.
15. In view of the discussions made above, the delay being less than ninety days, this Tribunal after appreciating the pleadings and documents referred is satisfied that there was sufficient reasons and that deliberate latches cannot be attributed to the Appellant. The law as on date mandates that the EC granted under the Environment (Protection) Act, 9 1986 can only be challenged before this Tribunal, we condone the delay and allow the petition for condonation of delay.
Parties to bear their own cost.
List the Appeal for admission on 24th July, 2012. Respondents are directed to file their Replies to the Appeal in the meanwhile.
Prof. Dr. R. Nagendran Justice A.S. Naidu
Expert Member Acting Chairperson
Durga Malhotra
24th May, 2012
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