National Green Tribunal
Bambhor Gram Panchayat Village Through ... vs Union Of India Ministry Of Environment ... on 3 January, 2023
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
MISCELLANEOUS APPLICATION NO.262 OF 2017(WZ)
IN
APPEAL NO. 36 OF 2017 (WZ)
1. Bambhor Gram Panchayat,
Bambhor, Taluka Talaja, Dist. Bhavnagar - 364 130
Through its authorized signatory
Bharatbhai Jairambhai Bill,
Male, Adult
2. Talli Gram Panchayat,
Village Talli, Taluka Talaja, Dist. Bhavnagar,
Through its authorized signatory,
Dayabhai Vitthalbhai Vasya, Male, Adult .....Applicants
Versus
1. Union of India,
Ministry of Environment, Forest
and Climate Change,
through the Secretary,
Indira Paryavaran Bhavan,
Jor Bagh Road, New Delhi
2. Gujarat Pollution Control Board,
Through the Member Secretary,
Paryavaran Bhavan, Sector 10A,
Gandhinagar, Gujarat - 382 010
3. State of Gujarat,
Forest and Environment Department,
Through the Secretary,
Block 14, 8th Floor,
Sachivalaya, Gandhinagar -382 010
4. UltraTech Cement Ltd.,
Having its registered office at
"B" Wing, 2nd Floor, Ahura Centre,
Mahakali Caves Road,
Andheri (East),
Mumbai - 400 093 ....Respondent(s)
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Page 1 of 51
Applicants : Mr. Abhimanue Shrestha, Advocate
Respondents : Mr. Rahul Garg, Advocate for R-1
Mr. Maulik Nanavati, Advocate for R-2 and R-3
Mr. Pinaki Mishra, Senior Advocate for R-4
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Reserved on : 10.11.2022
Pronounced on : 03.01.2023
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JUDGMENT
1. This application has been moved by the applicants/appellants seeking condonation of delay in filing Appeal No.36 of 2017 preferred under Section 16 read with Section 18 of the National Green Tribunal Act, 2010 (for short, "NGT Act") against the Environmental Clearance (EC) dated 05.01.2017 issued by respondent No.1 - Ministry of Environment, Forest and Climate Change (MoEF&CC) in favour of respondent No.4/Project Proponent - UltraTech Cement Ltd., as the quashing of the same has been prayed.
2. The case of the applicants/appellants is that the impugned order was passed on 05.01.2017 which came to their knowledge on 14.02.2017. The applicants had filed an application under the Right to Information Act to respondent No.1 enquiring about grant of EC to Respondent No.4, reply of which was received by them on 14.02.2017. The cause of action arises on the date on which the order is `communicated‟ to him, therefore, the limitation in the present case would commence from the date when the EC was communicated to the applicants i.e. 14.02.2017. Thus the present appeal has been filed within 90 days from 14.02.2017 as per the provisions under Section 16 of the NGT Act. The applicants have made a reference of the judgment of Principal Bench of this Tribunal dated 14.03.2012 passed in M.A. No.347/2012, arising out of Appeal No.76/2012 (Nikunj Developers & Page 2 of 51 Anr. Vs. State of Maharashtra Environment Department and Ors.), wherein it is held as follows:-
"Every appeal has to be filed within 30 days from the date of communication of the order. That is what an applicant is required to ensure before the appeal is heard on merits. However, the Tribunal has been vested with the jurisdiction to entertain the appeal which is filed after 30 days from the date of communication of an order."
3. The applicants tried to enquire about the EC and also checked about the same on the website of MoEF, however, due to some technical reasons they were unable to have access to it. There was no other publication of the EC for the concerned villagers either by MoEF or by the Project Proponent. Therefore, being left in dark, the applicants filed application under the Right to Information Act. The applicants after having received knowledge of the impugned order had to pass few resolutions. There had to be coordination with various panchayats. Thus the appeal could not be filed within 30 days. The applicants sought legal advice on how to proceed further. In gathering information, passing relevant resolutions and consulting the villagers and eventually consultation with lawyers resulted in delay beyond 30 days. It should not be taken an intentional delay. According to the applicants, though they had taken all possible steps to have the appeal filed in time, but inadvertently the delay of 34 days has occurred in filing of the same due to bonafide reasons, which is required to be condoned. The limestone mining by the Project Proponent under the project for which EC is granted would lead to severe salinity ingress which will have serious impact on ecology of the region and will also prove to have direct and disastrous effect on the fertility of the land in question. Therefore, if the delay is not condoned, the applicants would suffer irreparable loss while Page 3 of 51 on the other hand, the respondents would not suffer any harm or prejudice. Hence, the present application may be allowed.
4. The stand of respondent No.1 - MoEF&CC is that the EC was uploaded on the website of the Ministry as per the information given to them by National Informatics Centre (NIC). The copy of the EC had been uploaded on the website on the date of its issuance i.e. 05.01.2017. Respondent No.1 had also sent an email on 10.11.2022 wherewith the following information had been given with respect to uploading of EC on its website, which is reproduced hereunder:-
"NIC informed that as per the information available, Proposal no.IA/GJ/MIN/34113/2015 is visible in track option and same is also available in public domain and as per information available in portal said proposal has been granted EC on 5th Jan. 2017 by the ministry and EC letter uploaded by ministry into c dated "2017-01-
05 18:31:34.9400000". Further NIC informed that during that period PARIVESH was not made live and that time web based environmentclearance.nic.in was available."
5. From the side of respondent No.4/Project Proponent, the stand taken is that the application is not tenable under law because the same is not signed by the applicants but only has been affirmed by their Advocate. The same has also been filed without filing an affidavit in support thereof. It was mandatory on the part of the applicants to state on oath about the date of knowledge of the impugned Environment Clearance (EC) in order to compute the period of limitation. It is wrong to say that on receiving the reply to the application made under Right to Information Act the applicants came to know on 14.02.2017 about the impugned order and that the same has been filed within 90 days commencing from 14.02.2017 as per the provisions of Section 16 of the National Green Tribunal because they were entitled to have access to the website of Ministry of Environment, Forest and Climate Change (MoEF&CC). In fact, the applicants have suppressed with malafide Page 4 of 51 intention the fact that respondent No.4 had published a Public Notice in two daily news-papers namely "Saurashtra Samachar" in Gujarati and "Gujarath Samachar" in English, both on 11.01.2017, stating that EC dated 05.01.2017 has been granted to it. Also by letter dated 09.01.2017, respondent No.4 had submitted a copy of EC to the applicants and acknowledgement receipt of the same is dated 12.01.2017, which has a stamp having seal of Talathi & Mantri of applicant No.1 i.e. Bambhor Grampanchayat and Talathi & Mantri of applicant No.2 i.e. Talli Grampanchayat. Therefore, it is absolutely clear that the applicants had knowledge of the impugned order since 11.01.2017 on which date it was published, while the present appeal has been filed on 19.04.2019, not within the statutory period of limitation. Having knowledge thorough the application under the Right to Information Act is only an excuse to extend the period of limitation. The applicants have deliberately suppressed the part of the judgment of this Tribunal dated 14.03.2013 passed in M.A. No.247 of 2012, arising out of Appeal No.76 of 2012 (Nikunj Developers V. State of Maharashtra, Environmental Department), it was held therein that as per the Proviso to Section 16 of the National Green Tribunal Act, the Tribunal has no power to condone the delay beyond total period of 90 days. The present appeal is obviously filed beyond the outer limitation period of 90 days. It is also falsely stated by the applicants that the delay is only of 34 days in filing the appeal, which has occasioned due to bonafide reasons. According to the Respondent No.4, the true calculation would show that the delay is of 69 days while the Tribunal did not have powers to condone the delay beyond 60 days for any bonafide reasons. The issues regarding the impact on land-use in terms of fertility, salinity ingress etc. were already raised and discussed during the public hearings for the project in question and action plan was submitted as is stated in Page 5 of 51 paragraph 7 of the impugned EC order. A copy of the EC was available with Head Office of Gujarat State Pollution Control Board, Regional Office of Gujarat State Pollution Control Board at Bhavnagar, District Collector office at Bhavnagar, District Industry Office at Bhavnagar and Mamlatdar Office at Talaja and could be viewed at the website of the MoEF&CC. By letter dated 09.01.2017 addressed to the District Collector, Bhavnagar, respondent No. 4 had submitted a copy of the EC dated 05.01.2017 requesting him for its being displayed in Collector‟s office for thirty days for public information. The aforesaid letter dated 09.01.2017 alongwith enclosed copy of EC was also sent to the applicants, receipt of which is dated 12.01.2017.
6. The reliance is placed by the answering respondent on the judgment of this Tribunal (Principal Bench) in the case of Save Mon Region Federation v. Union of India; 2013(1) All India NGT(PB) 1 wherein it is held that the computation of period of limitation for appeal under Section 16 of the National Green Tribunal Act, 2010 against environmental clearance by the Ministry of Environment and Forests has to be reckoned and computed from the date when the impugned order is put on website to be downloaded without hindrance or from the day it is put on a public notice board; or from the date when the Project Proponent uploads the order on the website, publishes it in newspaper or when the order is displayed by local bodies alongwith the concerned department of the State Govt. and that the earliest in point of time shall be relevant. The reliance is also placed upon the judgment of this Tribunal in "Sunil Kumar Samanta v. West Bengal Pollution Control Board and others; MA No.573 of 2013 in Appeal No.67 of 2013, decided on 24.07.2014, wherein it was held in paragraph No. 54 that, "..... We are of the considered view that the provisions of Section 16 of the NGT Act are unexceptionally mandatory.... Further, with approval we reiterate the Page 6 of 51 view taken by the Tribunal in the cases referred supra that this Tribunal has no jurisdiction to condone the delay beyond the total period of 90 days provided under Section 16 of the NGT Act. In fact, the Tribunal cannot permit even institution of an appeal if there is such a delay."
7. It is further submitted by respondent No. 4 that as per condition No.39 given in EC, copy of the EC had been displayed for public information for thirty days by the State Pollution Control Board at its Regional Office at Bhavnagar, District Industries Centre at Bhavnagar, Collector office, Bhavnagar and Tahsildar/Mamlatdar office at Talaja. By letter dated 09.01.2017, the answering respondent forwarded a copy of EC dated 05.01.2017 to the District Collector, Bhavnagar and a copy of the same alongwith hard copy of EC was also served on Regional Officer, Gujarat Pollution Control Board, Bhavnagar, General Manager, District Industry Centre, Bhavnagar, Tahsildar/Mamlatdar, Talaja. On 09.01.2017, the official of the answering respondent served the official letter with hardcopy of EC to the District Collector, Bhavnagar, Regional Officer, Gujarat Pollution Control Board, Bhavnagar, General Manager, District Industry Centre, Bhavnagar and office copies of the letters showing signature, seal and date of receipt by aforesaid offices are annexed as Annexure-1, Annexure-2 and Annexure-3, respectively, which are found on record. On 12.01.2017, the officer of respondent No.4 served copy of the aforesaid letter dated 09.01.2017 with hard copy of EC for displaying at the office of Tahsildar/Mamlatdar, Talaja, showing seal and signature in token of receipt by the abovesaid offcers filed at Annexure-4 and Annexure-5, respectively. As per standard condition no.40 of the Environmental Clearance, respondent No.4 published notice in local newspapers i.e. daily newspaper `Saurashtra Samachar‟ and English daily „Gujarath Samachar „ both on 11.01.2017 and thereafter as per instructions from the office of respondent No.4, the said officer had Page 7 of 51 prepared letter on 12.01.2017 addressed to the Regional Officer, Gujarat Pollution Control Board, Bhavnagar Region and served the same on 12.01.2017 on the Regional Officer alongwith original public notices and the newspapers in which notices were published and receipts of office copy of the aforesaid letter, which shows signature, date and seal of the office and person who acknowledged the receipt and got stamp thereon, which is annexed at Annexure-6. During the Environmental Clearance process, the NGOs namely, Gujarat Rajya Paryavaran Bachav Samiti, the Prakriti Nature Club and the Paryavaran Mitra and one person Mr. Chachpara Babubhai S. had given suggestion and hence, as per the standard condition No.38 of the Environmental Clearance, with signature of Sr. Vice President - Mines, respondent No.4 company issued letter dated 12.01.2017 alongwith hard copy of the Environmental Clearance to all the above four NGOs by registered post and copies of the letters with postal receipts are annexed as Annexure-7 to Annexure-11. Thus, respondent No. 4 company has made all compliances as per the conditions of the Environmental Clearance dated 05.01.2017 and the Panchayaat, Talli and Panchayat, Bambhor were well conversant and were having knowledge since 12.01.2017 alongwith copy of the Environmental Clearance received from respondent No.4.
8. In the rejoinder dated 15.09.2017, the applicants have stated that they are the authorized signatories of the Gram Panchayats of Bambhor and Talli, Gujarat and are residing there while the Advocates for them are in Maharashtra. The drafting of the application and sending it for affirmation to Gujarat and thereafter to place it before the NGT, Western Zone, Pune would have taken longer time than the time allotted of one week by the NGT. Therefore, with the consent of the applicants under their oral instructions, the Advocate for the applicants filed the said application. The applicants have thereafter filed an affidavit in support of Page 8 of 51 the condonation of delay application. With regard to the contention of respondent No.4 that they had sent letter dated 09.01.2017 alongwith the copy of the impugned Environment Clearance dated 05.01.2017 to the applicants, it is submitted that no such letter was sent to the applicants, The signature, as alleged by respondent no.4, of receipt of the letter dated 09.01.2017 has been made by Talathi-Mantri. The Talathi is a local authority in charge of the revenue department of the village, not being the Gram Panchayat. Therefore, respondent No.4 has not fulfilled its obligation of publishing the Environmental Clearance as mandated under the Environment Impact Assessment (EIA) Notification 2006, which provided as follows:-
"It shall be mandatory for the project proponent to make public the environmental clearance granted for their project along with the environmental conditions and safeguards at their cost by advertising it at least in two local newspapers of the district or the State where the project is located. The Ministry of Environment and Forests and the State or UT Environmental Impact Assessment Authorities (SEIAAs), as the case may be, shall also place the environmental clearance in the public domain on Government Portal. Further, copies of the environmental clearance shall be endorsed to the heads of local bodies, panchayats and Municipal Bodies in addition to the relevant offices of the Government."
9. It is further submitted by the applicants that it is only after the Project Proponent has fulfilled the entire obligation cast upon it that the question of limitation to begin would arise. The Project Proponent has not served the copy of the Environment Clearance dated 05.01.2017 upon the applicants. The applicants, Gram Panchayat as well as the local bodies and Municipal Bodies need to be endorsed with the environmental clearance once it is granted. The use of the conjunction "and" instead of "or" indicates that it is mandatory for the Project Proponent and the Ministry of Environment and Forests and the State or UT Environmental Impact Assessment Authorities (SEIAAs) to furnish the copy of the Environmental Clearance to above mentioned Bodies instead Page 9 of 51 of just to any one of them. It is also denied that any material fact was suppressed or that moving an application under the Right to Information Act was an excuse to extend the period of limitation. The same was moved to get the necessary information to form substantial case on merit to challenge the grant of the impugned EC. The information regarding entire process of grant of EC was required to be obtained, such as minutes of public hearings, the EIA Committee report, etc. The statements made by respondent No.4 that no harm would be caused to the fertility of the land due to the limestone project or that they would implement action plan as directed under the specific condition of EC, are misleading statements. The final EIA report for the instant project does not have any action plan with respect to fertility of the land being protected by the Project Proponent. These issues were raised during the public hearing but were not incorporated in the final EIA report. Therefore, the applicants have a good case on merits and would suffer irreparable loss if the delay is not condoned as it would lead to severe salinity ingress having serious impact on ecology of the region.
10. The applicants placed reliance on the judgment of the Hon‟ble Apex Court in the case of Collector, Land Acquisition, Anantnag Vs. Mst. Katiji and others, delivered on 19.02.1987 wherein the following principles have been laid down for considering limitation:-
"(a) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(b) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(c) "Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.Page 10 of 51
(d) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(e) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(f) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
11. According to the applicants, the purpose of this appeal is to keep a check on the arbitrary grant of EC to big companies/projects which could harm the environment severely. In the instant case, grant of EC has a mere superficial compliance and the issues raised during public hearing have been majorly ignored. The action plan provided in the EIA report is insufficient. Therefore, cause of substantial justice deserves to be preferred for the other side cannot vest right in injustice being done because of non-deliberate delay. Preventing damage to environment surely deserves preference over denial of the appeal on technical grounds of bar under limitation, especially when the delay is caused due to bona fide reasons. The applicants cannot be said to have been sleeping over their rights as they are actively making representations during the public hearings, raising genuine concerns against the damage caused to the environment due to the project in question. Therefore, the period of limitation must be computed liberally to allow the applicants to challenge the EC. The applicants had, therefore, taken all possible steps to have the appeal filed in time, though inadvertently, there has been delay of 34 days in filing the same, computing from 14.02.2017 i.e. the date of receipt of reply to the application under the Right to Information Act. Page 11 of 51
12. No other respondent has filed any written objection though during arguments, learned counsel Mr. Maulik Nanavati has appeared for respondent Nos.2 and 3.
13. From the side of respondent No.1, learned counsel Mr. Rahul Garg has appeared and submits that he has filed reply-affidavit.
14. The learned counsel for the applicants has mainly relied upon the law laid down in Medha Patkar v. Ministry of Environment & Forests; 2013 SCC OnLine NGT 63, wherein our attention is drawn to paragraph Nos.12 to 16 and 18 to 19, which are quoted hereinbelow:-
"12. From the above dictum, it is clear that a communication would mean putting it in public domain and completing the acts as are contemplated in the EIA Notification of 2006, read with conditions of the EC and the provisions of the Act. In terms of the scheme of the notification and law, there are three stakeholders in the process of grant of environmental clearance :
(a) Project Proponent
(b) Ministry of Environment and Forests, and
(c) Other agencies which are required to fulfil their obligations to make the communication complete in terms of the provisions of the Act and the notification concerned.
13. The MoEF shall discharge its onus and complete its acts to ensure communication of the environmental clearance so as to trigger the period of limitation. The MoEF upon granting of the environmental clearance must upload the same on its website within seven days of such order, which would remain uploaded for at least 90 days, as well as put it on its notice board of the Principal as well as the Regional Office for a period of at least 30 days. It should be accessible to the public at large without impediments (Refer Save Mon Region Federation & Anr v. UOI & Ors.).
14. The project proponent, upon receipt of the environmental clearance, should upload it permanently on its website. In addition thereto, the project proponent should publish it in two local newspapers having circulation where the project is located and one of which being in vernacular language. In such publication, the project proponent should refer to the factum of environmental clearance along with the stipulated conditions and safeguards. The project proponent then also has to submit a copy of the EC to the heads of the local authorities, panchayats and local bodies of the district. It will also give to the departments of the State a copy of the environmental clearance.
Page 12 of 51
15. Then the Government agencies and local bodies are expected to display the order of environmental clearance for a period of 30 days on its website or publish on notice board, as the case may be. This is the function allocated to the Government departments and the local bodies under the provisions of the notification of 2006. Complete performance of its obligations imposed on it by the order of environmental clearance would constitute a communication to an aggrieved person under the Act. In other words, if one set of the above events is completed by any of the stakeholders, the limitation period shall trigger. If they happen on different times and after interval, the one earliest in point of time shall reckon the period of limitation. Communication shall be complete in law upon fulfilment of complete set of obligations by any of the stakeholders. Once the period of limitation is prescribed under the provisions of the Act, then it has to be enforced with all its rigour. Commencement of limitation and its reckoning cannot be frustrated by communication to any one of the stakeholders. Such an approach would be opposed to the basic principle of limitation.
16. The Tribunal must adopt a pragmatic and practical approach that would also be in consonance with the provisions of the Act providing limitation. Firstly, the limitation would never begin to run and no act would determine when such limitation would stop running as any one of the stakeholders may not satisfy or comply with all its obligations prescribed under the Act. To conclude that it is only when all the stakeholders had completed in entirety their respective obligations under the respective provisions, read with the notification of 2006, then alone the period of limitation shall begin to run, would be an interpretation which will frustrate the very object of the Act and would also cause serious prejudice to all concerned. Firstly, this completely frustrates the purpose of prescription of limitation. Secondly, a project proponent who has obtained environmental clearance and thereafter spent crores of rupees on establishment and operation of the project, would be exposed to uncertainty, danger of unnecessary litigation and even the possibility of jeopardizing the interest of his project after years have lapsed. This cannot be the intent of law. The framers of law have enacted the provisions of limitation with a clear intention of specifying the period within which an aggrieved person can invoke the jurisdiction of this Tribunal. It is a settled rule of law that once the law provides for limitation, then it must operate meaningfully and with its rigour. Equally true is that once the period of limitation starts running, then it does not stop. An applicant may be entitled to condonation or exclusion of period of limitation. Discharge of one set of obligations in its entirety by any stakeholder would trigger the period of limitation which then would not stop running and equally cannot be frustrated by mere non- compliance of its obligation to communicate or place the order in public domain by another stakeholder. The purpose of providing a limitation is not only to fix the time within which a party must approach the Tribunal but it is also intended to bring finality to the orders passed on one hand and preventing endless litigation on the other. Thus both these purposes can be achieved by a proper interpretation of these provisions. A communication will be complete once the order granting environmental clearance is placed in public domain by all the modes referred to by all or any of the stakeholders. The legislature in its wisdom has, under the provisions of the Act or in the Page 13 of 51 notification of 2006, not provided any other indicator or language that could be the precept for the Tribunal to take any other view.
18. Another factor that would support such a view is that a person who wishes to invoke jurisdiction of the Tribunal or a court has to be vigilant and of his rights. An applicant cannot let the time go by without taking appropriate steps. Being vigilant and to his rights and alive and conscious to the remedy provided (under the law) are the twin basis for claiming a relief under limitation. Vigilant bus non dormant bus jura subvenient. Now, we have to examine whether any of the stakeholders in the present case, has fully or completely discharged their obligations in terms of Section 16 of the NGT Act, read with Notification of 2006 and the Save Mon Region Federation judgment supra. As far as the project proponent is concerned, it has admittedly not discharged its obligations upon grant of environmental clearance on 16th October, 2012. It is pointed out that the project proponent, even till date, has not permanently put the said environmental clearance along with the environmental conditions and safeguards on its website. Neither did it publish the environmental clearance along with its conditions and safeguards; nor did it effect the publication in two newspapers having circulation in the area in which the project is located, one being in vernacular language. The project proponent only published intimation regarding grant of environmental clearance to it in the newspapers on 28th October, 2012. There is nothing on record to show that the project proponent has provided a copy of the EC to the Government Departments, Panchayats, Municipality and/or local bodies in terms of clause 10(i)(d) of the Notification of 2006 and those Departments have thereafter complied with the requirements of the notification. Thus in the case of the project proponent, it cannot be argued that limitation had started running against the applicant on 28th October, 2012 or any date prior thereto as it committed default of its statutory obligation and incomplete compliance cannot give rise to commencement of the period of limitation.
19. Now, we must deal with the plea taken up by the MoEF. According to them, the environmental clearance was granted on 16th October, 2012 and was uploaded on the website of the Ministry on 17th October, 2012. Resultantly, the appeal is barred by 16 days, it having been filed on 30th January, 2013. Their contention is that the Tribunal cannot even condone the delay beyond the period of 90 days in terms of Section 16 of the NGT Act."
15. Having cited the above law, it was vehemently pointed out by the learned counsel for the applicants that the procedure which has been provided regarding EC to be published/brought to the notice of general public, has to be followed meticulously. He has placed reliance on this ruling in the light of provisions under Section 16 of the National Green Tribunal Act, 2010. Section 16 reads as follows:-
Page 14 of 51 "16 Tribunal to have appellate jurisdiction. -Any person aggrieved by,-
(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33-A of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977 (36 of 1977);
(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980 (69 of 1980);
(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981);
(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);
(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);
(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986 (29 of 1986);
(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002 (18 of 2003), may, within a period of thirty days from the date on which the order or decision or direction 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 Page 15 of 51 said period, allow it to be filed under this section within a further period not exceeding sixty days."
16. The learned counsel drew our attention to the text "communicated"
to him and hammered that the limitation period of 30 days is said to begin for filing appeal from the date of communication of the order or decision or direction or determination to the applicants, which can be extended for further 60 days by the Tribunal if it is satisfied that the applicant was prevented by sufficient cause for filing an appeal within the said period. The main thrust is placed on word "communicated" to the applicant and he tried to emphasize as to when the communication shall be held to be complete so as to count the limitation. It is apparent from the above that the Ministry of Environment, Forest & Climate Change upon granting the EC should have uploaded the same on its website within seven days from such order which should have remained uploaded for atleast 90 days as well as MoEF&CC should have put it on its notice board as well as in Regional Office for a period of atleast 30 days, so that it should be accessible to public at large without impediment, which is also the position of law laid down in Save Mon Region Federation (supra). According to the applicants, this compliance has not been done by respondent No.4 or the Ministry of Environment, Forest & Climate Change because when it was said to have been uploaded, the applicants had tried to download but they could not download the same. Thereafter, the learned counsel for the applicants has drawn our attention to this Tribunal‟s order dated 24.11.2017 wherein it has observed as follows:-
"The question however remains whether the EC so uploaded on the website was accessible and downloadable to the public at large."
Thereafter, the learned counsel drew our attention to our order dated 22.09.2022 wherein we had directed the Ministry of Environment, Forest Page 16 of 51 & Climate Change to disclose as to whether the EC was uploaded as was being asserted by it on its website and was accessible and downloadable to public at large. Respondent No.1 was directed to make its position clear in this regard by filing a clarificatory affidavit and a copy of the same was directed to be circulated to other parties also.
17. The learned counsel for the applicants stated that compliance of above order has not been made by respondent No.1 and therefore, it should be inferred by the Tribunal that the EC, which is stated to have been uploaded on the website of MoEF&CC was not downloadable even if it was uploaded and therefore, complete compliance in terms of the judgment cited above cannot be held to have been made by respondent No.1.
18. The learned counsel for the applicants further relied upon the judgment in the case of Padmabati Mohapatra v. Union of India; 2013 SCC OnLine NGT 98 wherein in paragraph Nos.8 to 15, it has been observed as follows:-
"8. Corollary to such discussion would be the issue as to when the limitation would start running or the date from which such period of limitation is to be reckoned. All these questions need not detain us any longer as they squarely stand answered by a Five- Member Bench of this Tribunal in the case of Save Mon Region Federation & Anr. v. Union of India and Ors. [2013(1) All India NGT Reporter Page 1]. Following the principles stated therein, it is clear that communication of order is initiated by transmitting the order into the public domain by means which are accessible to the public at large without hindrance. That will be the date from which the period of limitation shall be reckoned as contemplated under Section 16 of the NGT Act. Various stakeholders are expected to comply with different sets of obligations post the passing of an order of EC in accordance with the provisions of the Environment (Protection) Rules, 1986 and the Environmental Clearance Regulations/Notification of 2006. It is only when the stakeholders, particularly the MoEF and the project proponent have discharged their obligations completely in all respects that the period of limitation shall commence. If different stakeholders at different intervals have completely discharged their obligations including putting the order of EC in the public domain at different times, then the earliest of them would be the relevant date.Page 17 of 51
9. In terms of law stated by the Tribunal in Save Mon Region Federation & Anr. v. Union of India and Ors. supra, MoEF was expected to upload on its website the order of EC within seven days from the date of passing of that order. Such uploaded order should be instantly accessible and downloadable by any person free of any impediment. Further, it was required to put the order in public domain by placing it on its notice board in its premises including the premises of its regional offices. Such notice board was also required to be available to the public at large, without any hindrance.
10. In the present case, it has been stated on behalf of the MoEF that the EC order was passed on 15th February, 2011 and was put up on its website on 23rd February, 2011. It is not stated whether the said order was put on the notice board in its office/regional offices. As such the MoEF has not completely discharged its obligation in accordance with law in a way that would trigger the period of limitation from a particular date.
11. The project proponent claims that it had put the order of EC on its website on 1st March, 2011 and that it had further published the intimation of EC order in the Indian Express and the Odisha Bhaskar on 21st February, 2011 and 20th February, 2011 respectively. On this premise, it is submitted that the period of limitation shall commence running from 20th/21st February, 2011 and thus the appeal is barred being beyond 90 days, and therefore, the delay cannot be condoned by the Tribunal.
12. At this stage, we may first notice what are the obligations of a project proponent under the relevant provisions of law. In a more recent judgment of the Tribunal in the case of Medha Patkar and Ors. v. Ministry of Environment and Forests and Ors. (Appeal No.1 of 2013), decided on 11th July, 2013, a Bench of the Tribunal held as under:
"12. From the above dictum, it is clear that a communication would mean putting it in public domain and completing the acts as are contemplated in the EIA Notification of 2006, read with conditions of the EC and the provisions of the Act. In terms of the scheme of the notification and law, there are three stakeholders in the process of grant of environmental clearance :
(a) Project Proponent
(b) Ministry of Environment and Forests, and
(c) Other agencies which are required to fulfill their obligations to make the communication complete in terms of the provisions of the Act and the notification concerned.
13. The MoEF shall discharge its onus and complete its acts to ensure communication of the environmental clearance so as to trigger the period of limitation. The MoEF upon granting of the environmental clearance must upload the same on its website within seven days of such order, which would remain uploaded for at least 90 days, as well as put it on its Page 18 of 51 notice board of the Principal as well as the Regional Office for a period of at least 30 days. It should be accessible to the public at large without impediments (Refer: Save Mon Region Federation & Anr v. UOI & Ors.).
14. The project proponent, upon receipt of the environmental clearance, should upload it permanently on its website. In addition thereto, the project proponent should publish it in two local newspapers having circulation where the project is located and one of which being in vernacular language. In such publication, the project proponent should refer to the factum of environmental clearance along with the stipulated conditions and safeguards. The project proponent then also has to submit a copy of the EC to the heads of the local authorities, panchayats and local bodies of the district. It will also give to the departments of the State a copy of the environmental clearance.
15. Then the Government agencies and local bodies are expected to display the order of environmental clearance for a period of 30 days on its website or display on notice board, as the case may be. This is the function allocated to the Government departments and the local bodies under the provisions of the notification of 2006. Complete performance of its obligations imposed on it by the order of environmental clearance would constitute a communication to an aggrieved person under the Act. In other words, if one set of the above events is completed by any of the stakeholders, the limitation period shall trigger. If they happen on different times and after interval, the one earliest in point of time shall reckon the period of limitation. Communication shall be complete in law upon fulfilment of complete set of obligations by any of the stakeholders. Once the period of limitation is prescribed under the provisions of the Act, then it has to be enforced with all its rigour. Commencement of limitation and its reckoning cannot be frustrated by communication to any one of the stakeholders. Such an approach would be opposed to the basic principle of limitation."
13. In light of the above, let us now consider whether the stakeholder has fulfilled completely and entirely its obligations as required under law (Environmental Clearance Regulations/Notification of 2006, and the judgment of the Tribunal in Save Mon Region Federation case supra).
14. We have perused the publication of order of EC effected by the applicant in the two newspapers. The law requires the project proponent not only to give intimation in regard to factum of passing an order of EC but also to publish the stipulated conditions and safeguards stated in such order. This admittedly has not been done by the project proponent. The project proponent admittedly did not give copies of the EC to the heads of the local authorities, panchayats and municipal bodies of the district to display on their respective notice boards and thus, could not ensure that it reaches the common man of the area where the project is proposed to be established. These are the apparent breaches of its obligations committed by the project proponent. The project proponent merely put Page 19 of 51 the EC order on its website on 1st March, 2011. Firstly, there is no justification for placing it on the website after a lapse of more than 2 weeks, and secondly, the period of limitation cannot run from 1st March, 2011 as other co-related obligations had not been discharged by the project proponent even on that date.
15. Once there is no compliance of the statutory obligations, then neither the MoEF nor the project proponent can raise any objection with regard to the limitation successfully."
17. The learned counsel has relied on the decision in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors.; (1999) 2 SCC 718 and para Nos.31, 36 and 37 to 39 thereof, whereon the learned counsel has emphasized, read as follows:-
"31. The `uncertainty' of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare Forum vs. Union of India and Others [1996 (5) SCC 647], a three Judge Bench of this Court referred to these changes, to the `precautionary principle' and the new concept of `burden of proof' in environmental matters. Kuldip Singh, J. after referring to the principles evolved in various international Conferences and to the concept of `Sustainable Development', stated that the Precautionary Principle, the Polluter-Pays Principle and the special concept of Onus of Proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in the Vellore Case in this behalf read as follows:
"14. In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country."
The Court observed that even otherwise the above- said principles are accepted as part of the Customary International Law and hence there should be no difficulty in accepting them as part of our domestic law. In fact on the facts of the case before this Court, it was directed that the authority to be appointed under section 3(3) of the Environment (Protection) Act, 1986 "shall implement the `Precautionary Principle' and the `Polluter Pays Principle'."
Page 20 of 51 The learned Judges also observed that the new concept which places the Burden of Proof on the Developer or Industrialist who is proposing to alter the status quo, has also become part of our environmental law.
36. We shall next elaborate the new concept of burden of proof referred to in the Vellore case at p.658 (1996 (5) SCC 647). In that case, Kuldip Singh, J. stated as follows:
"(iii) The `onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign."
37. It is to be noticed that while the inadequacies of science have led to the `precautionary principle', the said `precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, - is placed on those who want to change the status quo (Wynne, Uncertainty and Environmental Learning, 2 Global Envtl. Change 111 (1992) at p.123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less- polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. (See James M.Olson, Shifting the Burden of Proof, 20 Envtl. Law p.891 at 898 (1990)). (Quoted in Vol.22 (1998) Harv. Env.Law Review p.509 at 519, 550).
38. The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr.Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3.4.1998, para 61).
39. It is also explained that if the environmental risks being run by regulatory inaction are in some way "uncertain but non- negligible", then regulatory action is justified. This will lead to the question as to what is the `non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a `reasonable ecological or medical concern'. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of Page 21 of 51 environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society vs. Federated Farmers of New Zealand [1988 (1) NZLR 78]. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a `reasonable persons' test. (See Precautionary Principle in Australia by Chairman Barton) (Vol.22) (1998) Harv. Env. L.Rev. 509 at 549)."
18. By laying emphasis on above ruling, it was argued that in environmental case, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden. Therefore, according to the learned counsel for the applicant, in the present case, respondent No.4 - Project Proponent is the party who wants to alter the status quo, hence should shoulder the burden of proof that the compliances of the provisions with respect to EC have been appropriately discharged.
19. The learned counsel for the applicant further relied on the decision in the case of Assam Sanmilita Mahasangha and others Vs. Union of India and others with other petitioners, (2015)3 SCC 1 wherein reliance is placed on para 32, which is quoted hereinbelow:-
"Tilokchand Motichand is a judgment involving property rights of individuals. Ramchandra Deodhar's case, also of a Constitution Bench of five judges has held that the fundamental right under Article 16 cannot be wished away solely on the 'jejune' ground of delay. Since Tilokchand Motichand's case was decided, there have been important strides made in the law. Property Rights have been removed from part III of the Constitution altogether by the Constitution 44th Amendment Act. The same amendment made it clear that even during an emergency, the fundamental right under Article 21 can never be suspended, and amended Article 359 (1) to give effect to this. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 decided nine years after Tilokchand Motichand, Article 21 has been given its new dimension, and pursuant to the new dimension a huge number of rights have come under the umbrella of Article 21 (for an enumeration of these rights, see Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1 at para 57). Further, in Olga Tellis & Ors. v. Bombay Municipal Corporation, (1985) 3 SCC 545, it has now been conclusively held that all fundamental rights cannot be waived (at para
29). Given these important developments in the law, the time has come for this Court to say that at least when it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the doors of the court on any petitioner."Page 22 of 51
20. Having cited the above ruling, it was emphasized by the learned counsel for the applicants that the time has come for this Court to say that at least when it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself would not be sufficient to shut the doors of the court on any petitioner. He emphasizes that clean environment is a fundamental right of every citizen including the applicants. Therefore, liberty to knock the doors of justice should not be closed only on technical ground of delay or laches on the part of the Authority.
20. The learned counsel for the applicants further relied on the decision in the case of Sridevi Datla Vs. Union of India and others; (2021) 5 SCC 321, para nos.14 to 18 of which are reproduced hereinunder:-
"14. Environmental disputes are complicated and entail expertise in diverse fields (such as ecology, chemistry, biology, economics, administration, management, law etc.) for their determination in an effective and speedy fashion, that is not possible within the regular judicial and administrative set up in India. In other words, environmental disputes relating to forests, biodiversity, air and water are complicated in nature; resolving and expeditiously disposing of these cases is not possible without a separate special court. Environmental courts or tribunals have been a long-standing demand for other reasons too. For effective prevention and control of environmental protection, there was an urgent need for a separate environmental court or tribunal to adjudicate without much delay. India is a party to the United Nations Conference on the Human Environment (known as the Stockholm Conference), 1972 where it made commitments relating to safeguarding of natural resources and developing international law, and to provide compensation to victims of pollution and other environmental degradation.
15. India is also a signatory to the Rio Declaration adopted at the United Nations Conference on Environment and Development at Rio de Janeiro in 1992. The Rio Declaration states that participating states must make suitable environmental legislation regarding effective access to the people, to judicial and administrative proceedings, including remedies. The Law Commission's 186 th report recommended that the Union government should establish and constitute separate Environmental Courts in each state, to deal with complex, specialised issues concerning the environment. It was in this background that Parliament enacted the NGT Act. The Act amends various other enactments and adds provisions to them, for appeal before the NGT. These are incorporated in Section 33-B of The Water (Prevention and Control of Page 23 of 51 Pollution) Act, 1974; Section 13-A of The Water (Prevention and Control of Pollution) Cess Act, 1977; Section 2-A of The Forest (Conservation) Act, 1980; Section 31-B of The Air (Prevention and Control of Pollution) Act, 1981; Section 5-A in the Environment (Protection) Act, 1986 and Section 52- A in the Biological Diversity Act, 2002.
16. In Jitendra Singh v. Ministry of Environment & Others 8 the narrow, but important question considered was whether a state could alienate publicly available resources like ponds. This court held that that such transfer or alienation was impermissible. In Hanuman Laxman Aroskar v. Union of India, this court held that the NGT is under an obligation to consider issues as an expert body, and apply the principle of sustainable development, in adjudicating environmental issues, especially while considering the validity of grant of clearance to large projects under the Environment Protection Act. It was held that the NGT Act:
"provides for the constitution of a tribunal consisting both of judicial and expert members. The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment." (Hanuman Laxman Aroskar case, SCC p. 458, para 133).
17. The court noted that to be a member of the NGT, the individual had to possess specified academic qualifications, including a master's degree in science with a doctorate in engineering or technology, with prescribed experience in certain domains. To be an administrative member, the individual should possess fifteen years' administrative experience including experience of five years in dealing with environmental matters in the Central or State Government or in a reputed national or state level institution. The court proceeded to hold in Hanuman Laxman Aroskar (supra), that the grant of environmental clearance to a greenfield airport in Goa did not receive proper merits review by the NGT.
18. Having regard to these decisions, and given the nature of jurisdiction which the NGT has been invested with, the substantial questions of law that arise in the present case, are whether the approach to the issue of limitation by the NGT was correct, and whether on a correct interpretation of law, the appeal under Section 16 was filed within the 90 days period, in the facts of this case."
21. Emphasizing on the above ruling, the learned counsel for the applicants submitted that in the given facts of the said case, the appeal was found to have been filed within 90 days under Section 16 of the National Green Tribunal Act.
22. The learned counsel for the applicants has further relied on the decision of this Tribunal (Principal Bench) in the case of Save Mon Region Federation and another Vs. Union of India and others; Page 24 of 51 2013(1) All India NGT(PB) 1 and our attention is drawn to paras 13, 16, 17, 18, 19, 37, 41, 42, 43, 44, 45, 46, 50, 51, 52, 53, 55, 57, 63 and 64, which are reproduced hereunder:-
"13. The legislature, in its wisdom, has used the expression 'communicated to him' under Section 16 of the NGT Act in contradistinction to 'serving', 'receiving', 'delivery' or 'passing' of the order. Normally, these are the expressions which are used in the provisions relating to limitation. Generally, limitation is to be reckoned from the date which is relatable to these expressions. For instance, the period of limitation may commence from the date the order is received by or served upon an individual, as presented in the relevant provisions. The expression 'communication' is neither synonymous nor even equivalent in law to the above mentioned expressions. The above-mentioned expressions require merely a unilateral act, that is, dispatch of the order, receipt of the order or service of the order upon an individual. But the act of communication cannot be completed unilaterally. It does require the element of participation by two persons, one who initiates communication and the other to whom the communication is addressed and who receives the same, i.e. the intended receiver.
16. Upon analysis of the above, it is clear that 'communication' is made by one and received by another. It requires sufficient knowledge of the basic facts constituting the communication. The action of communicating is precisely sharing of knowledge by one with another of the thing communicated. Communication, particularly to the public, has to be by methods of mass communication, like satellite, website, newspapers etc. 'Communicated' is a strong word. It requires that sufficient knowledge of basic facts constituting the grounds of the order should be imparted fully and effectively to the person.
17. The expression 'is communicated to him', thus, would invite strict construction. It is expected that the order which a person intends to challenge is communicated to him, if not in personam than in rem by placing it in the public domain. 'Communication' would, thus, contemplate complete knowledge of the ingredients and grounds required under law for enabling that person to challenge the order. 'Intimation' must not be understood to be communication. 'Communication' is an expression of definite connotation and meaning and it requires the authority passing the order to put the same in the public domain by using proper means of communication. Such Communication will be complete when the order is received by him in one form or the other to enable him to appropriately challenge the correctness of the order passed.
18. Law gives a right to 'any person' who is 'aggrieved' by an order to prefer an appeal. The term 'any person' has to be widely construed. It is to include all legal entities so as to enable them to prefer an appeal, even if such an entity does not have any direct or indirect interest in a given project. The expression 'aggrieved', again, has to be construed liberally. The framers of law intended to give the right to any person aggrieved, to prefer an appeal without any Page 25 of 51 limitation as regards his locus or interest. The grievance of a person against the Environmental Clearance may be general and not necessarily person specific. This provision of Section 16 requires communication of the order to such person(s). The expression 'him' takes within its ambit 'any person' who is aggrieved by an order. Therefore, the expression 'communication' accordingly has to receive a more generic and at the same time, definite meaning. The nature of the communication has to be such that it reaches the public at large, as that appears to be the legislative intent. A person is expected to, and can, only act when the order is put in public domain. He is expected to download the same from the website of the concerned Ministry/Department, and if he so requires thereafter, make an application for receiving specific information. However, the content of the order is required to be communicated by the MoEF as well as by the Project Proponent.
19. The limitation as prescribed under Section 16 of the NGT Act, shall commence from the date the order is communicated. As already noticed, communication of the order has to be by putting it in the public domain for the benefit of the public at large. The day the MoEF shall put the complete order of Environmental Clearance on its website and when the same can be downloaded without any hindrance or impediments and also put the order on its public notice board, the limitation be reckoned from that date. The limitation may also trigger from the date when the Project Proponent uploads the Environmental Clearance order with its environmental conditions and safeguards upon its website as well as publishes the same in the newspapers as prescribed under Regulation 10 of the Environmental Clearance Regulations, 2006. It is made clear that such obligation of uploading the order on the website by the Project Proponent shall be complete only when it can simultaneously be downloaded without delay and impediments. The limitation could also commence when the Environmental Clearance order is displayed by the local bodies, Panchayats and Municipal Bodies along with the concerned departments of the State Government displaying the same in the manner afore- indicated. Out of the three points, from which the limitation could commence and be computed, the earliest in point of time shall be the relevant date and it will have to be determined with reference to the facts of each case. The applicant must be able to download or know from the public notice the factum of the order as well as its content in regard to environmental conditions and safeguards imposed in the order of Environmental Clearance. Mere knowledge or deemed knowledge of order cannot form the basis for reckoning the period of limitation.
37. Another principle which can be applied while construing and examining such provision is the presumption that the Legislature was aware of all the relevant laws in force when it enacted the law in question. If the Legislature opts to use some expressions or words in the provisions, that too, in a particular manner and with some emphasis, then such words and expressions must be given their plain meaning and import. Such provisions should be applied with all their rigour.
41. The requirement to make communication of Environmental Clearance order is not an administrative one but a legal requirement. Once it is a legal right, it has to be stated as to whose legal Page 26 of 51 obligation it is to communicate the order and the manner in which such communication should be effected. This legal obligation emerges from two different aspects. Firstly, imposition of certain safeguards and conditions in exercise of the powers vested in MoEF under the Environment (Protection) Act, 1986. Secondly, the limitations and modus that may be directed in regard to the Environmental Clearance, in terms of the rules and regulations framed under Environmental Regulations read in conjunction with the Environmental (Protection) Rules, 1986. In terms of these rules and regulations, projects falling under Category Á' of the Schedule are mandated to obtain prior environmental clearance from the MoEF while the projects falling under Category 'B' are to obtain such Environmental Clearance from the concerned State Environment Impact Assessment Authority. The notification of Environmental Clearance Regulation, 2006 was issued on 14th September 2006 and deals with grant of prior Environmental Clearance as well as with the 'Post Environmental Clearance Monitoring'. For the purpose of the present dispute it would be sufficient for us to notice Regulation 10, which reads as under:-
"10. Post Environmental Clearance Monitoring- [(i)
(a) In respect of Category 'A' projects, it shall be mandatory for the Project Proponent to make public the environmental 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 indication that the project has been accorded Environment Clearance and the details of MoEF website where it is displayed.
(c) The Ministry of Environment and Forest and the State/Union Territory level Environmental Impact Assessment Authorities (SEIAAs), as the case may be shall also place the environmental clearance in the public domain on Government 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.] [(ii)] it shall be mandatory for the project management to submit half-yearly compliance reports in respect of the stipulated prior environmental clearance terms and conditions in hard and soft copies to the regulatory authority concerned, on 1st June and 1st December of each calendar year.
[(iii)] All such compliance reports submitted by the project management shall be public documents. Copies of the same shall be given to any person on application to the concerned regulatory authority. The latest such compliance report shall also be displayed on the website of the concerned regulatory authority." Page 27 of 51
42. Since the present case relates to a Category 'A' project, we are primarily concerned with Regulation 10 (i)(a) of the Environment Clearance Regulations, 2006. The most noticeable expression used in this regulation is that it 'shall be mandatory' for the Project Proponent to make public the Environmental Clearance granted for their project along with the environmental conditions and safeguards at their cost by prominently advertising it in at least two local newspapers of the district or State where the project is located, and in addition, this shall also be displayed on the Project Proponent's website permanently. The use of the words 'shall' and 'mandatory' in Regulation 10 of 2006 Regulations clearly exhibits the intent of the Legislature not to make the compliance to these provisions ''directory'. There is no legislative indication or reason for construing the word 'shall' as 'may'. Settled canon of statutory interpretation contemplates that it is necessary to lay emphasis on the language used by the framers of the regulations. Once a provision has no element of ambiguity and the provision its being mandatory is clearly discernible from the plain language thereof, it would be impermissible to hold, even impliedly, that the provision is directory in its content and application. It would be required of the concerned stakeholders to comply with such provisions stricto sensu. The principle of substantial compliance would have no application to this provision and on its plain reading the provision is mandatory and must be complied with as provided. The Project Proponent is legally obliged under this provision to make public the Environmental Clearance granted for the project with the environmental conditions and safeguards at their cost by promptly advertising it in at least two newspapers of the district or in the state where the project is located. In addition, the order shall also be displayed on its website permanently.
43. Still in addition thereto, the Project Proponent also has an obligation to submit the copies of the Environmental Clearance to the Heads of local bodies, Panchayats and Municipal bodies in addition to the relevant offices who in turn have to display the same for 30 days from the date of receipt thereof.
44. An obligation is also cast upon the MoEF or the State/Union Territory Level Environmental Impact Assessment Authority, as the case maybe, to place the Environmental Clearance in the public domain on Government portal. On the analysis of Regulation 10 and its sub-regulations, it is clear that the obligation to communicate the Environmental Clearance in the prescribed manner lies both upon the MoEF/State Government/State Environmental Impact Assessment Authority, on the one hand and the Project Proponent, on the other. This mandatory legal obligation is intended to safeguard the public interest, on the one hand and protection of the environment, on the other. That is why the legislature has given the right to 'any person' to prefer an appeal against such order irrespective of his locus standi or his interest in the lis.
45. This brings us to an ancillary question as to what is required to be published/advertised in the two newspapers of the district or the State where the project is located. The answer is provided in the Regulation itself which states that it is mandatory to make public the Environmental Clearance granted for the project along with the environmental conditions and safeguards. In other words, mere Page 28 of 51 publication of information about the order granting Environmental Clearance would not be construed as compliance with this provision stricto sensu. The conditions for granting of Environmental Clearance with definite safeguards have to be published in the newspaper. The purpose behind publishing a notice with the contents of the order is only that 'any person' would be able to make up his mind whether he needs to question the correctness or legality of such order.
46. The Project Proponent is not vested with any option but to put the Environmental Clearance order on its website and advertise it completely in the form as required. It has no discretion to perform them partially or in extracts. It is expected to necessarily comply with the conditions prescribed under Regulation 10, Environment Clearance Regulations, 2006. These are:
a) The Project Proponent shall publish or advertise the order of Environmental Clearance, its conditions and said safeguards in at least two newspapers of district or State where the project is located.
The Project Proponent has to do it on its cost ;
b) The Project Proponent has to put the same on its website permanently;
c) Lastly, the Project Proponent has to submit the copies to the Heads of local bodies, Panchayat and Municipal Bodies in addition to the relevant offices of the Government.
50. In other words, in addition to Project Proponent, the MoEF and concerned officers of the stated authorities are also required to display such order in a manner that it comes to the notice of the public at large. All the three stake holders, i.e., the Project Proponent, the MoEF and the concerned Government/Authority are statutorily obliged to comply with the conditions stated in this Regulation. None of them can alter the mode or methodology of bringing the order in the public domain. The basic feature of this provision is that it not only recognizes or contemplates the factum of passing of an order of Environmental Clearance but also brings its contents in the public domain.
51. Lastly, the requirement of placing the Environmental Clearance in public domain through a specified mode is contemplated as a condition of the order of Environmental Clearance. The Condition 13 of the Environmental Clearance dated 19th April, 2012 reads as under:
"The Project Proponent should advertise within 7 days at least in two local newspapers widely circulated in the region around the project, one of which shall be in the vernacular language of the locality concerned informing that the project has been accorded Environmental Clearance and copies of clearance letters are available with the State Pollution Control Board/Committee and may also be seen at Website of the Ministry of Environment and Forests at http://www.envfor.nic.in."
52. The language of 'Condition 13' of the Environmental Clearance order is clearly in addition and not in derogation to the requirements Page 29 of 51 stated in Regulation 10 of the EC Regulations, 2006. The Project Proponent as per this condition is required to advertise within seven days, the grant of Environmental Clearance. This condition is at some variance to the requirement of Regulation 10. As per the above condition the order has to be published in two newspapers and one has to be in vernacular language. On a plain reading of 'Condition 13', it is clear that the intention behind it is to only give an intimation of the grant of Environmental Clearance, as it requires the Project Proponent to state that the clearance letter is available with the concerned authorities. Thus, the requirement of 'Condition 13' is somewhat different than what is commanded by Regulation 10.
53. These are the conditions precedent for a Project Proponent and the MoEF or State Authority to validly give effect to an order of Environmental Clearance. These provisions being mandatory do not admit of lapses, which in every likelihood would adversely affect the implementation of such Environmental Clearance. The maxim Conditio praecedens adimpleri debet prius quam sequatur effectus (a condition precedent must be fulfilled before the effect can follow) will have application to such situations.
55. Besides the fact that there is a statutory obligation upon the authorities and the Project Proponent to bring the order in the public domain by the specified modes aforementioned, the approach that we have afore-stated can also be supported by the reasoning that to make the remedy of an appeal effective, efficacious and meaningful, the availability of reasons, conditions and safeguards stated in the order would be necessary. A person must know the content of the order which he has a right to challenge in an appeal. It is only when the content of the order is available and known to a prospective appellant that such appellant would be able to effectively exercise the right of appeal. Thus, 'communication of the order' would mean and must be construed as meaning the date on which the factum and content both, of the Environmental Clearance order are made available in the public domain and are easily accessible by a common person. These provisions have to be interpreted by giving them the meaning that will advance the purpose of the provision and make the remedy practical and purposeful. This is the requirement of law and is tilted in favour of the larger public interest. Mere inconvenience or the expenses incurred by the parties or by the authorities would not be a ground to adopt a different approach. Necessitas publica major est quam private (The public necessity is greater than the private interest).
57. This stand of the applicant has to be examined in light of other circumstances of the present case. The Project Proponent had miserably failed to comply with the statutory obligation placed upon him in terms of Regulation 10 (i) (a). He only published an intimation stating that the Environmental Clearance has been granted. The company never published the environmental conditions and safeguards in the two newspapers, as required under the said Regulation. In fact, there is no compliance of Regulation 10(i)(a) as well as proper compliance of Condition 13 of the Environmental Clearance order dated 19th April, 2012 by the Project Proponent. It was further expected of the Project Proponent to provide copies of the Environmental Clearance to the Heads of the local bodies, Panchayats, Municipal bodies, in addition to providing the same to Page 30 of 51 the relevant offices of the Government, who in turn were expected to publicly display the same for a period of 30 days. From the record available before us, it cannot be stated that this Regulation was complied with. It is stated on behalf of the Project Proponent that it was given to the panchayats but no details have been furnished as to when and to which local authority and government body the Environmental Clearance was given and when was the same displayed on the Board of such Authority/Government, as is required under Regulation 10(i)(d).
63. It is expected of the judicial forum to eliminate the cause of litigation, particularly when it is a cause for repeated litigation boni judicis est causas litium dirimere. As such pleas are taken more often than not in cases of condonation of delay relatable to the compliance of these provisions, thus, it needs clarity and certainty in its application.
64. Before we part with this file, we are of the considered view that it is required of us to pass certain directions so as to provide clear meaning to the expression 'communication' and also to ensure that none of the stakeholders, including MoEF, Project Proponent and the other concerned persons are placed in a disadvantageous position for inaction or lapse of the other in fulfillment of their respective statutory obligations. To serve the ends of justice better and in the larger public interest, we hereby issue the following directions:
1. The MoEF shall, within seven days from the date of passing of the order of Environment Clearance, upload it on its website.
It shall be the duty of the MoEF to ensure that immediately upon its uploading the same should be made accessible and can be downloaded without any delay or impediment. It would remain so uploaded on the website for a period of at least 90 days.
2. The Ministry shall also maintain a public notice board in its premises including its regional offices, where the public is permitted without hindrance and display the order of environmental clearance on that notice board for a period of 30 days.
3. Orders communicated and displayed shall be complete, particularly in relation to the environmental conditions and safeguards, and proper records of the order being uploaded on the website and its placement on the public notice board of the MoEF shall be maintained by MoEF in normal course of its business.
4. The Project Proponent in terms of Regulation 10(i)(a) shall publish the factum of environmental clearance granted to the project along with environmental conditions and safeguards, at its own costs. Such publication shall be effected in two local newspapers of the district or State where the project is located.
5. In addition thereto, the Project Proponent shall display on its website permanently, the factum, environmental conditions and safeguards of environmental clearance. This shall be done in the name of the company, unit or industry which is the Page 31 of 51 Project Proponent and not in the name of its parent or subsidiary company or sister concern.
6. The Project Proponent shall also submit the copies of the Environmental Clearance to the Heads of the local bodies, panchayats and municipal bodies of that district.
7. The Project Proponent shall also submit to the concerned department of the Government of that State, copy of the Environmental Clearance which in turn shall be displayed by the concerned department of that government for a period of 30 days on its website as well as on its public notice board.
8. Besides the above, a Project Proponent, under the conditions of the consent order, if so provided therein, shall publish the factum of grant of Environmental Clearance in two newspapers, one being in vernacular language, having circulation in the area where the industry is located. It shall give such necessary information, which may not contain the conditions and safeguards for grant of Environmental Clearance.
9. In view of the order of the Central Information Commissioner and the record before us, we hereby direct the MoEF to ensure that its website is always in working order and shall be positively accessible to the public at large to enable any person to download the requisite information instantaneously. Such steps should be taken forthwith.
10. The date on which the order of Environmental Clearance is communicated to the public at large, shall be the date from which the period of limitation shall reckon as contemplated under Section 16 of the Act. Communicating the order, in other words, shall mean putting the order in the public domain in its complete form and as per the mode required under the provision of the NGT Act of the Regulation 2006. The limitation shall start running and shall be computed as referred to in Para 19 of the judgment. Where different acts by different stakeholders are complied with at different dates, the earliest date on which complete communication is carried out, shall be the date for reckoning of limitation .
22. From the side of respondent No.4, learned Senior Counsel Mr. Pinaki Mishra has also placed reliance upon the judgment passed by this Tribunal in (a) Save Mon Region Fedration and another (supra), (b) Medha Paatkar (supra) and (c) Padmabati Mohapatra (supra) and submitted that the applicants‟ submission that respondent No.4 did not comply with the obligations regarding communication of Environmental Clearance stipulated in Regulation Page 32 of 51 No.10(i)(a) of the EIA Notification, 2006 and that the Ministry of Environment, Forests and Climate Change has made only a partial compliance, are completely misconceived for following reasons.
23. Learned counsel for respondent No.4 has placed reliance on V. Sundar, Proprietor Chemicals, India Vs. Union of India and others; (2015) SCC OnLine NGT 145, wherein the Southern Zonal Bench of this Tribunal while dealing with the contention of the appellants therein that the advertisement that was made in the newspaper did not contain the particulars and conditions attached to Environmental Clearance in question, was rejected and the following was held:-
"34. The case of the appellant is that he came to know about the date of grant of EC along with the terms and conditions only on 22.11.2014 when the appellant received the letter dated 20.11.2014 on which date the appellant downloaded the EC from the website. From the scrutiny of the available materials, it is quite evident that it is not a correct statement of fact. In the instant case, the respondent have placed 2 publications made one in English and another in Tamil as early as 5/2015 which clearly indicate that it was publicly notified through the said publications that the project in question has been granted the EC. It was also further stated in the publications that the EC is available with the TNPCB and can also be seen in the website of SEIAA, Tamil Nadu in the link at http://www.seiaa.th.gov.in. Thus there were clear notices to the public at large to the effect that the EC was granted to the project in question and complete and comprehensive information was available on the website of the TNPCB. The comments made by the counsel that the advertisement made in both the newspapers did not even contain the particulars and conditions attached to the EC in question cannot be countenanced. The size of the advertisement is immaterial but what it conveys is material. The judgment of the Principal Bench of NGT made in Save Mon Region Federation and Lobsang Choedar vs. Union of India, Manu/GGT/0029/2013 lends full support to the case of respondents that if done as above then it has to be taken as a complete communication. The period of limitation has to be reckoned from 05.09.2014, i.e. date of publications made as contended by the learned counsel for the 10th and 11th respondents."Page 33 of 51
24. The said judgment was challenged before the Hon‟ble Supreme Court in Civil Appeal (Diary) No.35321 of 2015 and the Hon‟ble Apex Court dismissed the same vide order dated 15.01.2016. Therefore, it is submitted that the position which has been laid down by the Southern Zonal Bench of this Tribunal that the particulars and conditions attached to the Environmental Clearance in their entirety need not be advertised in newspaper, shall be treated to be upheld upto the Hon‟ble Apex Curt, though this was refuted by the learned counsel for the applicants by saying that there is some judgment of the Hon‟ble Apex Court which says that if the Hon‟ble Apex Court dismisses an appeal in limine, then the original order will not stand merged with the order of the Apex Court.
25. For this, the learned counsel for the applicants has placed reliance on the decision in the case of Kunhayammed and others Vs. State of Kerala and another; (2000) 6 SCC 359, wherein in paragraph No.44, following proposition of law is laid down:-
"To sum up our conclusions are :-
(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii)The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or Page 34 of 51 affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-
speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C."
26. Thereafter he relied on the decision in Khoday Distilleries Limited (now known as Khoday India Limited) and others Vs. Sri Mahadeshwara Sahakara Sakkare Karkhane Limited, Kollegal (under Liquidation) represented by the Liquidator; (2019)4 SCC 376, and our attention is drawn to paragraphs 26, 26.1 and 26.2 thereof, wherein the conclusions drawn in Kunhayammed and Page 35 of 51 others (supra) in clauses (iv) to (vii) of paragraph 44, have been reiterated.
27. Further he has placed reliance on Kaikhosrou (Chick) Kavasji Framji Vs. Union of India and another; (2019)20 SCC 705, wherein reliance is placed on paragraphs 52 to 55, which read as follows:-
"52. This takes us to examine another question raised by the respondents as to whether judgment rendered by the Bombay High Court dated 06.02.1979 stood merged in the order of this Court dated 04.08.1998. In our view, it does not merge.
53. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187].
54. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit.
55. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate."
28. Having relied upon the above citations, which relate to the doctrine of merger, it has been argued by the learned counsel for the applicants that an order refusing a special leave to appeal may be a non-speaking order or speaking one, but in either case, it does not Page 36 of 51 attract the doctrine of merger. The order refusing the special leave to appeal does not stand substituted in place of the order under challenge. All that means is that the court was not inclined to exercise its discretion so as to allow the appeal being filed. If the order refusing the leave to appeal is speaking one, which gives reasons for refusing to grant leave, then the order has two implications. Firstly, the statement of law contained in the order would be a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution of India. Secondly, whatever is stated in the order would bind the parties thereto and the Court, Tribunal or Authority in the proceedings subsequent thereto by way of judicial discipline, the Hon‟ble Supreme Court being the Apex Court of the country. But, this would not amount to saying that the order of the Court, Tribunal or Authority would stand merged in the order of the Hon‟ble Supreme Court rejecting special leave petition. Therefore, applying this proposition of law in the present case, it is argued that the Hon‟ble Apex Court has passed order dated 15.01.2016 in Civil Appeal (Diary) No.35321 of 2015 in V. Sundar, Proprietor Chemicals, India (supra), which was preferred against the judgment of Southern Bench of this Tribunal in V. Sundar, Proprietor Chemicals, India, decided on 25.03.2015 (supra). The Hon‟ble Supreme Court passed the following order:-
"Heard.
Delay condoned.
No substantial question of law of general/public importance arises for our consideration in this application for leave to appeal.
The prayer for leave to appeal is accordingly declined and the application for leave to appeal dismissed."Page 37 of 51
29. Therefore, it is well covered by the proposition of law, which has been cited in the above rulings, and accordingly the judgment of the Southern Bench of this Tribunal would not stand merged with that of the order of the Hon‟ble Supreme Court.
30. In response to this, from the side of respondent No.4, in rebuttal, it is submitted that the judgment in V. Sundar‟s case was passed on 25.03.2015 i.e. subsequent to the date 14.03.2013 when the judgment was passed in Save Mon. The judgment in V. Sundar makes clear reference to the judgment in Save Mon and draws significantly from the same to arrive at its conclusion. Therefore, it cannot be said that the said judgment has not been appreciated merely because the conclusion drawn is not favouring the applicants. Therefore the contention that the judgment in V. Sundar is per incuriam is also baseless. It is further submitted that it is also an erroneous argument that the order of the Hon‟ble Supreme Court dated 15.01.2016 in Civil Appeal (Diary) No.35321 of 2015 against the judgment in V. Sundar will not lead to a merger of the said order in judgment of the Tribunal in V. Sundar and therefore, it is incapable of operating as res judicata, relying upon the judgment of the Hon‟ble Supreme Court in Kunhayammed (supra). The judgment in Kunhayammed (supra) clearly distinguishes between the dismissal of a Special Leave Petition and a statutory appeal i.e. Civil Appeal. The paragraphs relied upon by the applicants state that the dismissal of Special Leave Petition at the threshold in exercise of the jurisdiction conferred upon the Hon‟ble Supreme Court under Article 136 of the Constitution of India without a speaking order will not lead to a merger of the judgment of the lower court, tribunal or authority with that of the Hon‟ble Supreme Court. This is so because dismissal of a Page 38 of 51 Special Leave Petition only means that the court refused to grant leave to appeal against an order "because the dismissal is not of the appeal but of the special leave petition." However, in paragraphs 15 and 40 of the judgment in Kunhayammed, the Hon‟ble Supreme Court categorically clarifies that this is not so in the case of statutory appeals wherein the order of the Appellate Court or Tribunal merges with the order of lower court, tribunal or authority. In paragraph 44
(i) of the judgment in Kunhayammed, it is stated as follows:-
"(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law."
31. In view of above, it is argued by the learned counsel for respondent No. 4 that the judgment of the Southern Bench of this Tribunal in V. Sundar was appealed against before the Hon‟ble Supreme Court in Civil Appeal No.35321 of 2015, which was dismissed vide order dated 15.01.2016 as no substantial question of law of general/public importance was found to have arisen for its consideration. Therefore, it being an order passed in statutory appeal by the Hon‟ble Supreme Court, which appeal was not a discretionary jurisdiction of the Hon‟ble Supreme Court, rather the party who was aggrieved by the Tribunal‟s order as a matter of right approached the Hon‟ble Supreme Court and the said order dismissing the appeal has been passed. Therefore, it cannot be held that the Hon‟ble Supreme Court did not apply its mind and dismissed it in limine. It can very well be taken to be a fact that the Hon‟ble Supreme Court must have applied its mind to the Page 39 of 51 entire judgment which was passed by this Tribunal and when it did not find any ground on the basis of which it was being challenged to be of any substance, then only the same was dismissed. Therefore, the Tribunal‟s judgment should be treated to have beeen merged in the order of the Hon‟ble Apex Court.
32. The learned counsel for respondent No.4 also placed reliance on the judgment of the Hon‟ble Apex Court in Commissioner of Income Tax Vs. Amritlal Bhogilal and Co.; IAR 1958 SC 868, wherein concept of doctrine of merger has been discussed and the following was held:-
"There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operate and capable of enforcement...."
The above proposition of law has been upheld by the Hon‟ble Apex Court in the judgment in Kunhayammed (supra).
33. We are in agreement with the arguments of the learned counsel for respondent No.4 that Civil Appeal (Diary) No.35321 of 2015 being a statutory appeal, preferred against the judgment of the Southern Bench of this Tribunal and the same having been dismissed by the Hon‟ble Supreme Court by the order dated 15.01.2016, we can very well conclude that the Hon‟ble Apex Court did apply its mind while dismissing the said appeal finding no Page 40 of 51 substantial ground. Therefore, it is quite evident that the position of law, which was stated in V. Sundar‟s case has been upheld by the Hon‟ble Apex Court and this is the position of law for subsequent period. Therefore, that should prevail.
34. From the side of respondent No.4, the extreme negligent conduct of the applicants was also pointed out from the record by indicating that the first date of hearing in the appeal was 11.05.2017 on which date the applicants‟ counsel did not appear and the appeal was dismissed in default, which was restored on 03.08.2017 even though the application for restoration was filed beyond a period of thirty days as required under Rule 20(1) of the National Green Tribunal (Practices and Procedure) Rules, 2011. Even after restoration, the applicants did not appear on 13.12.2017, 23.01.2018 and 29.01.2018 which led to the appeal being dismissed for default on 29.01.2019. Thereafter, the applicants filed a defective application on 05.10.2018, thereafter, withdrew the same and then filed an application for recall on 29.01.2019 after an unexplained delay of over a period of one year. But even then, the applicants did not choose to follow up on the said application for two years as they did not appear on 16.07.2021, when the final order was passed, which has now been set aside by the Hon‟ble Apex Court.
35. Having drawn our attention to this conduct of the applicants, it is argued by learned counsel for respondent No.4 that the applicants do not deserve any leniency in being granted condonation of delay as it is an attempt by the applicants only to cause harassment to the answering respondent.
Page 41 of 51
36. In rebuttal, the learned counsel for the applicants has argued that the conduct of the applicants need not be taken into consideration now because the same had already been raised before the Hon‟ble Supreme Court in Civil Appeal No.383 of 2022 and the matter finally has been given a quietus. He also pointed out that from the submissions made by respondent No.4 as recorded in paragraph 10 of the judgment dated 11.07.2022 passed by the Hon‟ble Supreme Court in the said Civil Appeal, it is apparent that the Hon‟ble Supreme Court was satisfied with the explanation given by the applicants and thereafter only the appeal was allowed.
37. We find the explanation given by the learned counsel for the applicants to be not convincing because the Hon‟ble Apex Court though certainly has recorded in paragraph 10 the conduct of the appellants but that is in the form of submissions made by respondent No.4. However, we find after going through the entire judgment that the main reason why the said appeal was allowed, was that the order impugned before the Hon‟ble Apex Court was passed by the learned Single Judge who did not have jurisdiction vested in him. Therefore, we find that there is force in the argument of respondent No.4 that the conduct of the applicants also shows that they are indulging in a kind of litigation which is resulting in huge harassment of respondent No.4.
38. Respondent No.4 has also raised point in respect of improper verification of the delay condonation application as it was not signed by the party or by the authorized signatory of the applicants and that only Advocate of the applicants had put his signature thereon. It is further argued that the application is moved by Page 42 of 51 Sarpanch on behalf of the panchayat without authorization in complete violation of the Judgment of the Hon‟ble High Court of Chhatisgarh in Sarpanch, Gram Panchayat Salakhiya Vs. Banshidhar Bhoi, Case No.WPS No.6032 of 2008 and of the Hon‟ble Supreme Court in Ahmedabad Municipal Corporation Vs. Rajubhai Somabhai Bharwad; (2015)7 SCC 663. No-where Gujarat Panchayats Act, 1993 provides that the Sarpanch can sue on behalf of the panchayat. Panchayat being Corporate Body cannot be represented by a person who does not have proper authorization for Corporate Body to sue on its behalf.
39. In response, the learned counsel for the applicants submits that there is no requirement under Sections 16, 18 and 19 of the National Green Tribunal Act, 2010 read with Rules 8, 13, 16 and 22 of the Rules of 2011 framed thereunder to file separate application seeking condonation of delay and the same has to be explained in prescribed Form 1. This application is being filed only as a matter of practice. He has placed reliance on the decision in Sesh Nath Singh Vs. Baidyabati Sheoraohuli Co-op. Bank (2021)7 SCC 313. It is further stated that the Act, Rules or even procedure in CPC permits signing of application by the Advocate and that non-verification or non-filing of affidavit by the party is not mandatory and for this, he relied on Order VI Rules 1, 14, 15 read with Order III Rules 1 and 4 CPC and the law laid down in Jineshwardas vs. Jagrani (2003) 11 SCC 372. It is further submitted that it is settled law that any defects in signing, verification are irregularity and the application cannot be rejected on that ground lone.
Page 43 of 51
40. We are of the view that in practice, an appeal/application is being moved before National Green Tribunal having composite prayer of delay condonation as well as seeking main relief, but in some cases we also find that separate application for condonation of delay is also being moved. In this particular case, the memo of appeal has been signed by the appellants. Therefore, only because the Advocate of the applicants has moved the application for condonation of delay, would not materially affect the case of the applicants in this regard. As regards the resolution passed by the Gram Panchayat, which is being represented by the applicants, it is stated by the learned counsel for the applicants that the applicant No.1 himself is Sarpanch of the Gram Panchayat and therefore, he should be treated to have right to file an appeal on behalf of the panchayat. The present case being a case related to environmental matter, if anybody brings any violation before us, we need not be pedantic in our approach that such a person who has brought the matter before us should be restrained from filing the case/appeal, as provisions of CPC are not strictly applicable before this forum. Therefore, we can condone this act of the applicants even if there was no authorization.
41. In addition to the arguments advanced on behalf of respondent No. 4 in foregoing paragraphs of this judgment, it is further submitted that the screenshot of the website of respondent No.4 shows that the EC was uploaded on website and was downloadable, which is evident from Annexure-R-4/A.
42. The learned counsel for respondent No.4 submitted that the applicants have not produced any such proof that the EC was not downloadable from the website of MoEF&CC or that the same was Page 44 of 51 not available at the Head Office of GPCB, Gandhinagar, Regional Office, GPCB, Bhavnagar, Collector Office, Bhavnagar, District Industries Centre office, Bhavnagar or Mamlatdar office, Talaja. The applicants are acting in representative capacity as Sarpanchs of the Gram Panchayats who are not illiterate persons who could reasonably be believed to have approached the authorities regarding their grievance of the EC being not downloadable. If that was the position, they could have written a letter to the Government authorities stating that they have been refused to be given copies of EC or that the same was not displayed at their office. Not even a screenshot of any such action taken on behalf of the applicants is placed on record.
43. Based on submissions, arguments, EIA Notification requirements and NGT Orders we would like to summarize status of compliance with respect to EC communication as below:-
" SN Entity Responsibility Compliance Remarks
A. MOEFCC
As per EIA Place the EC letter signed on 5 Fully Complied
Notification environmental Jan 2017, scanned on on 5-1-2017
2006 clearance in the public 5 Jan 2017 at 6:56:21
Clause 10 domain on pm, and NIC confirmed
Government portal that the same was
uploaded on 5 Jan
2017 at xxx
As per NGT MoEF shall put the EC letter is available Fully Complied
Order in complete order of till date at on 5-1-2017
Save Mon Environmental http://environmentcle
Case Clearance on its arance.nic.in/onlinese
website and the same archnewrk.aspx?autoi
can be downloaded d=5017&proposal_no=I
without any hindrance A/GJ/MIN/34113/20
or impediments within 15&typep=EC
seven days of such
order, which would
remain uploaded for at
least 90 days.
MoEF shall put it on No proof submitted Not Complied.
its notice board of the that EC was put on
Principal as well as the notice board.
Regional Office for a
Page 45 of 51
SN Entity Responsibility Compliance Remarks
period of at least 30
days. It should be
accessible to the
public at large without
impediments
B. Project
Proponent
As per EIA To make public the Advertisement Not Complied.
Notification environmental intimating receipt of
2006 clearance granted for EC letter published
Clause 10 their project along with but the advertisements
the environmental does not include
conditions and environmental
safeguards at their conditions and
cost by prominently safeguards.
advertising it at least
in two local
newspapers of the
district
Display in the project No proof submitted Not Complied.
proponent‟s website that EC was put on
permanently website.
Submit to the Heads of Complied and proof Fully complied
local bodies, submitted of receipt of on 11.1.2017
Panchayats and the same on 9 Jan
Municipal Bodies in 2017.
addition to the relevant
offices of the
Government
As per NGT Project Proponent No proof submitted Not Complied.
Order in uploads the that EC was put on
Save Mon Environmental website.
Case Clearance order with
its environmental
conditions upon its
website as well as
publishes the same in
the newspapers
Project Proponent Advertisement Not Complied
publishes intimating receipt of
Environmental EC letter published
Clearance order with but the advertisements
its environmental does not include
conditions and environmental
safeguards in 2 conditions and
newspapers. safeguards.
The project proponent Complied and proof Fully complied
also has to submit a submitted on 11.1.2017
copy of the EC to the
heads of the local
authorities,
panchayats and local
bodies of the district
As per EC A copy of clearance Complied and proof Fully complied
Letter letter will be marked to submitted of receipt of on 11.1.2017
concerned Panchayat the same on 9 Jan
Page 46 of 51
SN Entity Responsibility Compliance Remarks
2017.
The project authorities Advertised in 2 Fully Complied
should advertise at newspapers on 11 Jan on 9.1.2017
least in two local 2017 that the project
newspapers widely has been accorded
circulated, one of environmental
which shall be in the clearance and a copy
vernacular language of of the clearance letter
the locality concerned, is available with the
within 7 days of the State Pollution Control
issue of the clearance Board and also at web
letter informing that site of the Ministry of
the project has been Environment, Forest
accorded and Climate Change at
environmental www.environmentclear
clearance and a copy ance.nic.in.
of the clearance letter
is available with the
State Pollution Control
Board and also at web
site of the Ministry of
Environment, Forest
and Climate Change at
www.environmentclear
ance.nic.in and a copy
of the same should be
forwarded to the
Regional Office.
C. SPCB
As per EIA Nil
Notification
2006
Clause 10
As per NGT Government agencies No proof submitted by Not Complied
Order in are expected to display SPCB.
Save Mon the order of
Case environmental
clearance for a period
of 30 days on its
website or publish on
notice board, as the
case may be.
As per EC State Pollution Control No proof submitted by Not Complied
Letter Board should display a SPCB.
copy of the clearance
letter at the Regional
office, District Industry
Centre and Collector's
office/ Tehsildar's
Office for 30 days
D. Village
Panchayat
As per EIA Display the EC for 30 No proof submitted by Not Complied
Notification days from the date of SPCB.
2006 receipt.
Clause 10
Page 47 of 51
SN Entity Responsibility Compliance Remarks
As per NGT Local bodies are No proof submitted by Not Complied
Order in expected to display the SPCB.
Save Mon order of environmental
Case clearance for a period
of 30 days on its
website or publish on
notice board, as the
case may be.
44. From the submissions in the case, it is clear that MoEF&CC has complied with requirements of clause 10 of EIA Notification on 05.01.2017 in view of the position of law cited above in V. Sundar‟s case (supra) which is upheld by the Hon‟ble Supreme Court and other cases.
45. After careful re-consideration of directions of N.G.T. in Save Mon and Medha Patkar cases (supra), we are of the view that some of the recommendations/directions in Save Mon/ Medha Patkar (supra) order regarding complete EC order to be placed on notice board of MoEF&CC, are not practical. From the PARIVESH website, it is seen that MoEF&CC in 2017 had issued 514 ECs. Each EC letter has 5-10 pages. Hence to meet direction "MoEF shall put it on its notice board of the Principal as well as the Regional Office for a period of at least 30 days. It should be accessible to the public at large without impediments"
arrangements will have to be made to display about 200-400 pages on notice board of Principal as well as the Regional Office/s every month.
Same is true with respect to requirement to be fulfilled by the Project Proponent in the terms of requirements in letters of clause 10 of EIA Notification (and also directions in Save Mon/Medha Page 48 of 51 Patkar Order) "To make public the environmental 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" for two reasons. Firstly advertisement for publishing entire EC letter, which in the present case runs into 11 pages will require large size. More importantly, as the EC is to be issued in one regional language news-paper also, EC needs to be translated by MoEF&CC/Project Proponent in the regional language. There is no provision/mechanism for the same, at present.
46. Hence, in our opinion requirement in EC letter "The project"
authorities should advertise at least in two local newspapers widely circulated, one of which shall be in the vernacular language of the locality concerned, within 7 days of the issue of the clearance letter informing that the project has been accorded environmental clearance and a copy of the clearance letter is available with the State Pollution Control Board and also at web site of the Ministry of Environment, Forest and Climate Change at www.environmentclearance.nic.in is in keeping with the spirit of EIA Notification-2006.
47. After having heard the rival contentions and perused the record, we are of the opinion that Respondent No. 1 - MoEF&CC has complied with all the necessary obligations on their part in order to establish that the Environmental Clearance which has been granted to Respondent No.4 was uploaded on the website of Respondent No.1 - MoEF&CC. Approval thereof has been found in the form of Email dated 10.11.2022 which clearly shows that the same was uploaded. Sufficient evidence which we have cited above Page 49 of 51 in respect of the respective parties shows that a very meticulous compliance has been made with respect to uploading of EC on the website of MoEF&CC and not only that, the communication of the same was also made to the applicants in writing. There is proof in that regard on record in the form of acknowledgement by the Talathi Mantri, which is at page 1030 of the paper-book as it bears the signature of Talathi Mantri of Gram Panchayat, Talli and Gram Panchayat, Bambhor. Therefore, now it cannot be denied by the applicants that they were not informed vide letter dated 09.01.2017 in respect of grant of EC. There are two newspaper cuttings of Gujarat Samachar at page 1032 of the paper-book as well as Saurashtra Samachar at page 1033 of the paper-book, which establish that in these two newspapers, one in Gujarati daily and another in English daily, grant of EC was widely published on 11.01.2017. Therefore, even compliance regarding publication of EC in the newspapers is also done. On the other hand, the learned counsel for the applicants could not show a single document to establish that the applicants had tried to obtain the copy of EC from any of the authorities, which were transmitted copy of EC alongwith letter even if we believe that they were not directly communicated the EC. Nothing could be shown by the applicants as to how they stated that they tried to download the EC but the same could not be downloaded. There is no screenshot of the efforts made by the applicants to that effect which could lend some credence to their ground, nor did they approach any of the higher authority making complaint with respect to the EC being not downloadable. In view of these facts, which have come before us, we are of the considered view that the date of knowledge with regard to EC having been granted to respondent No.4 would be the Page 50 of 51 date on which it was uploaded i.e. 05.01.2017 as we find enough proof thereof on record and if by that we count the period of 90 days, that would end on 04.04.2017 while the instant appeal has been filed on 19.04.2017, which is admittedly being found time- barred. We are not inclined to accept the argument of the learned counsel for the applicants that they came to know about it through the information sought under the Right to Information Act on 14.02.2017, as there was no need for moving an application under Right to Information Act to obtain the said information and it appears to be a pretext to bring the said appeal within the period of limitation.
44. Since we find that this appal is time-barred, the application for condonation of delay as well as appeal itself deserve to be dismissed and are accordingly dismissed. No costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM January 03 , 2023 M.A . NO.262 OF 2017 NPJ Page 51 of 51