National Green Tribunal
Mehnatkash Mazdoor Kishan Ekta ... vs Union Of India & Ors on 26 April, 2012
BEFORE THE NATIONAL GREEN TRIBUNAL
NEW DELHI
(PRINCIPAL BENCH)
APPEAL NO. 6 of 2012
In the matter of:
1. MEHNATKASH MAZDOOR KISHAN EKTA SANGATHAN
Through Its Secretary Sh. Harihar Patel
Village Gare, Tamnar, Chhattisgarh - 496197
2. RAMESH AGARWAL
Satyam Kunj, Naya Ganj,
Raigarh, Chhattisgarh - 496001
APPELLANTS
VERSUS
1. UNION OF INDIA
Through the Secretary,
Ministry of Environment and Forests
Paryavaran Bhawan, CGO Complex
Lodhi Road, New Delhi - 110003
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2. CHHATTISGARH ENVIRONMENT CONSERVATION BOARD
Through the Member Secretary
1-Tilak Nagar, Shiv Mandir Chowk
Main Road, Avanti Vihar, Raipur
Chhattisgarh - 492001
3. M/s JINDAL POWER LTD
Through its Managing Director
Jindal Centre, 12, Bhikaji Cama Place
New Delhi - 110066
RESPONDENTS
Counsel for Applicants:
Mr. Ritwick Dutta
Mr. Rahul Choudhary
Counsel for Respondents:
Mr. Pinaki Mishra
Mr. S. Patra
Ms. Neelam Rathore
Ms. Yogmaya Agnihotri
ORDER
PRESENT:
Justice A.S. Naidu (Acting Chairperson) Prof. R. Nagendran (Expert Member) ......................................................................................
Dated 26th April, 2012 ......................................................................................
The Environmental Clearances(EC) dated 18th March, 2011 and 4th November, 2011 granted by the Ministry of 2 Environment and Forests (MoEF) to M/s. Jindal Power Limited for expansion of 4x600 MW (2400 MW) Coal Based Thermal Power Plant at Tamnar, Taluk, Raigarh in the District of Chhatisgarh is assailed in this appeal on several grounds.
2. The scenario of facts reveal that way back in the year 2007, the MoEF on being satisfied that all the paraphernalia have been complied, granted EC to M/s. Jindal Power Limited for establishing 1000 MW Coal Based Power Plant at Tamnar in the District of Raipur of Chhattisgarh. Subsequently, an application was submitted for setting-up 2400 MW (6x400 MW) Coal Based Power Plant. The MoEF after conducting appropriate studies and after considering the impact on the environment, being satisfied that all the criteria for establishing 2400 MW Coal Based Thermal Power Plant are satisfied, by the Order dated18th March, 2011, granted EC. It appears due to non-availability of coal M/s. Jindal Power Limited established a plant for 1200 MW i.e., (2x600 MW) and commenced production.
Order dated 18th March, 2011issued by the MoEF specifically stipulated the following condition:
"Environmental Clearance shall be applicable for 2x600 MW. However, at a later stage when 3 firm coal linkage for third and fourth unit of 600 MW are also available, the project proponent may request the Ministry for inclusion of these units of 600 MW each, for which the Ministry shall be consider appropriately."
Thus, it is clear that expansion of the project and further enhancement to 2x600 MW was subject to appropriate consideration and was not automatic.
3. While matters stood thus, M/s. Jindal Power Limited (Respondent No. 3) managed to import coal. Consequently, another application was filed for granting clearance for additional 2x600 MW Coal Based Thermal Power Plant. The said application was allowed and the EC was granted by the MoEF by Order dated 4th November, 2011. The said Order along with the Order dated 18th March, 2011 is assailed in this appeal.
4. After receiving notice, Respondent No. 3 appeared and filed a preliminary reply on the question of limitation. Mr. Mishra, Learned Sr. Advocate appearing for Respondent No. 3, drawing our attention to Section 16 of the National Green Tribunal Act, 2010 forcefully submitted that time for filing an appeal assailing an Order being 30 days from the date on which the Order was passed or communicated, the 4 present appeal filed after the prescribed time, is grossly barred and should be dismissed on that ground alone.
5. Mr. Mishra further submitted that the prayer in the appeal being to quash the Order dated 18th March, 2011 and 4th November, 2011, the jurisdiction of this Tribunal Under Section 14 cannot be invoked.
6. In support of his submission, Mr. Mishra relied upon the judgment of this Tribunal in the case of A.S. Mani vs. the State Level Environment Impact Assessment Agency and others (Appeal No. 5 of 2012) and submitted that the delay being more than 90 days under no circumstances the same can be condoned. Further, according Mr. Mishra in the guise of challenging the Order dated 4th November, 2011, the appellant seeks to assail the Order dated 18th March, 2011 and such an attempt should not be allowed. In other words, according to Mr. Mishra if a person is prohibited under law to assail an Order, he cannot be allowed to challenge the same Order in an indirect manner and prayed to dismiss the appeal inlimini.
7. Mr. Panjwani, Learned Sr. Advocate appearing for the appellant, on the other hand, contended that in fact the Order dated 4th November, 2011 is a composite one and the clearance dated 18th March, 2011 merges with the Order dated 4th November, 2011. Relying upon the 5 communications received by the appellant via e- mail(Exhibit - A 2),Mr. Panjwani submitted that the EC was uploaded on the website of the MoEF and / or otherwise made available to the Appellant only after 7th of December, 2011.The appeal having been filed on 4thJanuary, 2011 there is absolutely no delay and the same is within time.
8. Heard Leaned Counsel for both the parties at length, perused the e-mail communications, copies of which are available in record and have been marked as Annexure - A 2. The letter dated 26th December, 2011 issued by Shri W. Bharat Singh, CPIO and Deputy Director of MoEF reveals that a copy of the letter issued by the Ministry on 4th November, 2011, amending the Environmental Clearance (EC) accorded on 18th March, 2011, was communicated to appellant along with the said letter. Thus, it is clear that the Order dated 4th November, 2011 was communicated to the Appellant only in December, 2012, and as such the cause of action, for assailing the said Order arose only from the date of communication i.e., in December, 2012. The appeal having i.e., been filed in January, 2012, according to us is within time.
9. However, we find some force in the contentions raised by Mr. Mishra, Learned Sr. Advocate to the effect that on the guise of challenging the EC granted for expansion of the 6 project dated 4th November, 2011,the Appellant cannot be permitted to assail or challenge the EC granted way back on 18th March, 2011. Admittedly, the project was installed according to the EC dated 18th March, 2011. The said EC having not been assailed within time specified, cannot be assailed at this belated stage. That apart, the cause of action for challenging the order dated 18th March, 2011 has became grossly barred by afflux of time and thus has attained finality.
10. In view of the discussions made above, we hold that Appeal no. 6 of 2012 shall be confined only to EC granted by the MoEF by Order dated 4th November, 2011. In other words, the propriety or otherwise of the EC granted on 18th March, 2011 shall not be considered in this Appeal.
11. The Respondents are granted liberty to file their replies confining to the EC dated 4th November, 2011 on or before 10thMay, 2012.
List this matter on 15th May, 2012.
Prof. R. Nagendran Justice A.S. Naidu
Expert Member Acting Chairperson
Dharamvir
26th April, 2012
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