National Green Tribunal
Tarun Patel vs State Of Gujarat Gujarat Pollution ... on 10 August, 2020
Item No. 2 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Appeal No. 123/2019 (WZ)
(I.A. No. 147/2019)
Tarun Patel Appellant(s)
Versus
State of Gujarat & Ors. Respondent(s)
Date of hearing: 10.08.2020
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Appellant(s) : Mrs. Supriya Dangare, Advocate
ORDER
1. By filing the present appeal, the appellant wants to execute the order dated 01.04.2014 passed in Original Application No. 34/2013 of the Bench. In compliance of the order passed in above mentioned application, the Gujarat Pollution Control Board has issued notification dated 18.07.2019 and aggrieved by the notification the appellant say that it is not in compliance of the order. There is 57 days delay in filing the appeal and application has been moved to condone the delay. Firstly, for compliance of the order, there is provision to file the application of execution but instead of filing an execution, the appellant has filed the appeal against the notification. The matter with regard to CTP and STPs that no untreated water should be discharged into the river bodies certain directions have been issued by Principal Bench of this 1 Tribunal in Original Application No. 148/2016, Mahesh Chandra Saxena vs. South Delhi Municipal Corporation & Ors. vide order dated 21.05.2020 and directions are as follows:
"8. Before proceeding further, we may also note further order of this Tribunal dated 06.12.2019 in O.A. No. 673/2018 directing as follows:
"XII. Directions:
47. We now sum up our directions as follows:
i. 100% treatment of sewage may be ensured as directed by this Tribunal vide order dated 28.08.2019 in O.A. No. 593/2017 by 31.03.2020 atleast to the extent of in-situ remediation and before the said date, commencement of setting up of STPs and the work of connecting all the drains and other sources of generation of sewage to the STPs must be ensured. If this is not done, the local bodies and the concerned departments of the States/UTs will be liable to pay compensation as already directed vide order dated 22.08.2019 in the case of river Ganga i.e. Rs. 5 lakhs per month per drain, for default in in-situ remediation and Rs. 5 lakhs per STP for default in commencement of setting up of the STP.
ii. Timeline for completing all steps of action plans including completion of setting up STPs and their commissioning till 31.03.2021 in terms of order dated 08.04.2019 in the present case will remain as already directed. In default, compensation will be liable to be paid at the scale laid down in the order of this Tribunal dated 22.08.2019 in the case of river Ganga i.e. Rs. 10 lakhs per month per STP.
iii. We further direct that an institutional mechanism be evolved for ensuring compliance of above directions. For this purpose, monitoring may be done by the Chief Secretaries of all the States/UTs at State level and at National level by the Secretary, Ministry of Jal Shakti with the assistance of NMCG and CPCB.
iv. For above purpose, a meeting at central level must be held with the Chief Secretaries of all the States/UTs atleast once in a month (option of video conferencing facility is open) to take stock of the progress and to plan further action. NMCG will be the nodal agency for compliance who may take assistance of CPCB and may give its quarterly report to this Tribunal commencing 01.04.2020.2
v. The Chief Secretaries may set up appropriate monitoring mechanism at State level specifying accountability of nodal authorities not below the Secretary level and ensuring appropriate adverse entries in the ACRs of erring officers. Monitoring at State level must take place on fortnightly basis and record of progress maintained. The Chief Secretaries may have an accountable person attached in his office for this purpose.
vi. Monthly progress report may be furnished by the States/UTs to Secretary, Ministry of Jal Shakti with a copy to CPCB. Any default must be visited with serious consequences at every level, including initiation of prosecution, disciplinary action and entries in ACRs of the erring officers.
12. The report further mentions preparation of formats for collection of information from concerned States PCBs/PCCs, development of online portal. Compliance status is found to be as follow:
"As per the information received from concerned SPCBs, out of 66 noncomplying CETPs, 26 CETPs have complied the directions, however, 40 CETPs are still non-complying. Environmental compensation has been levied on 13 CETPs. Actions for levying EC / legal action are under process against 10 CETPs. The state-wise summary status of 66 non-complying CETPs and action taken by concerned SPCBs is given at Annexure-IX. Further, CETP-wise compliance status of CPCB's directions and recommendations is attached at Annexure-X."
2. Further direction has been given in Original Application No. 673/2018 dated 22.06.2020:
"26. Summary of directions:
i. All States/UTs through their concerned
departments such as Urban/Rural Development,
Irrigation & Public Health, Local Bodies, Environment, etc. may ensure formulation and execution of plans for sewage treatment and utilization of treated sewage effluent with respect to each city, town and village, adhering to the timeline as directed by Hon'ble Supreme Court. STPs must meet the prescribed standards, including faecal coliform.
CPCB may further continue efforts on compilation of River Basin-wise data. Action Plans be firmed up with Budgets/Financial tie up. Such plans be overseen by Chief Secretary and forwarded to CPCB 3 before 30.6.2020. CPCB may consolidate all Action Plans and file a report accordingly.
Ministry of Jal Shakti and Ministry of Housing and Urban Affairs may facilitate States/UTs for ensuring that water quality of rivers, lakes, water bodies and ground water is maintained.
As observed in para 13 above, 100% treatment of sewage/effluent must be ensured and strict coercive action taken for any violation to enforce rule of law. Any party is free to move the Hon'ble Supreme Court for continued violation of its order after the deadline of 31.3.2018. This order is without prejudice to the said remedy as direction of the Hon'ble Supreme Court cannot be diluted or relaxed by this Tribunal in the course of execution. PCBs/PCCs are free to realise compensation for violations but from 1.7.2020, such compensation must be realised as per direction of this Tribunal failing which the erring State PCBs/PCCs will be accountable.
ii. The CPCB may study and analyse the extent of reduction of industrial and sewage pollution load on the environment, including industrial areas and rivers and other water bodies and submit its detailed report to the Tribunal.
iii. During the lockdown period there are reports that the water quality of river has improved, the reasons for the same may be got studied and analysed by the CPCB and report submitted to this Tribunal. If the activities reopen, the compliance to standards must be maintained by ensuring full compliance of law by authorities statutorily responsible for the same.
iv. Accordingly, we direct that States which have not addressed all the action points with regard to the utilisation of sewage treated water may do so promptly latest before 30.06.2020, reducing the time lines in the Action Plans. The timelines must coincide with the timelines for setting up of STPs since both the issues are interconnected. The CPCB may compile further information on the subject accordingly.
v. Needless to say that since the issue of sources of funding has already been dealt with in the orders of the Hon'ble Supreme Court, the States may not put up any excuse on this pretext in violation of the judgment of the Hon'ble Supreme Court."
47. We now sum up our directions as follows:
4i. 100% treatment of sewage may be ensured as directed by this Tribunal vide order dated 28.08.2019 in O.A. No. 593/2017 by 31.03.2020 atleast to the extent of in-situ remediation and before the said date, commencement of setting up of STPs and the work of connecting all the drains and other sources of generation of sewage to the STPs must be ensured. If this is not done, the local bodies and the concerned departments of the States/UTs will be liable to pay compensation as already directed vide order dated 22.08.2019 in the case of river Ganga i.e. Rs. 5 lakhs per month per drain, for default in in- situ remediation and Rs. 5 lakhs per STP for default in commencement of setting up of the STP.
ii. Timeline for completing all steps of Action Plans including completion of setting up STPs and their commissioning till 31.03.2021 in terms of order dated 08.04.2019 in the present case will remain as already directed. In default, compensation will be liable to be paid at the scale laid down in the order of this Tribunal dated 22.08.2019 in the case of river Ganga i.e. Rs. 10 lakhs per month per STP.
iii. We further direct that an institutional mechanism be evolved for ensuring compliance of above directions.For this purpose, monitoring may be done by Chief Secretaries of all the States/UTs at State level and at National level by the Secretary, Ministry of Jal Shakti with the assistance of NMCG and CPCB.
iv. For above purpose, a meeting at central level must be held with the Chief Secretaries of all the States/UTs atleast once in a month (option of video conferencing facility is open) to take stock of the progress and to plan further action. NMCG will be the nodal agency for compliance who may take assistance of CPCB and may give its quarterly report to this Tribunal commencing 01.04.2020.
v. The Chief Secretaries may set up appropriate monitoring mechanism at State level specifying accountability of nodal authorities not below the Secretary level and ensuring appropriate adverse entries in the ACRs of erring officers. Monitoring at State level must take place on fortnightly basis and record of progress maintained. The Chief Secretaries may have an accountable person attached in his office for this purpose.
vi. Monthly progress report may be furnished by the States/UTs to Secretary, Ministry of Jal Shakti with a copy to CPCB. Any default must be visited with serious consequences at every level, including initiation of prosecution, disciplinary action and entries in ACRs of the erring officers.
vii. As already mentioned, procedures for DPRs/tender process needs to be shortened and if found viable business model developed at central/state level.
5viii. Wherever work is awarded to any contractor, performance guarantee must be taken in above terms.
ix. CPCB may finalize its recommendations for Action Plans relating to P-III and P-IV as has been done for P-I and P-II on or before 31.03.2020. This will not be a ground to delay the execution of the Action Plans prepared by the States which may start forthwith, if not already started.
x. The Action Plan prepared by the Delhi Government which is to be approved by the CPCB has to follow the action points delineated in the order of this Tribunal dated 11.09.2019 in O.A. No. 06/2012.
xi. Since the report of the CPCB has focused only on BOD and FC without other parameters for analysis such as pH, COD, DO and other recalcitrant toxic pollutants having tendency of bio magnification, a survey may now be conducted with reference to all the said parameters by involving the SPCB/PCCs within three months. Monitoring gaps be identified and upgraded so to cover upstream and downstream locations of major discharges to the river. CPCB may file a report on the subject before the next date by e-mail at [email protected].
xii. Rivers which have been identified as clean may be maintained."
45. We reiterate our directions in order dated 6.12.2019 in the present matter, reproduced in ParaError! Reference source not found.above, read with those in order dated 21.5.2020 in OA 873/2017 and direct CPCB and Secretary, Jal Shakti to further monitor steps for enforcement of law meaningfully in accordance with the directions of the Hon'ble Supreme Court and this Tribunal. The monitoring is expected with reference to ensuring that no pollution is discharged in water bodies and any violation by local bodies or private persons are dealt with as per mandate of law as laid down in orders of the Hon'ble Supreme Court and this Tribunal without any deviation from timelines. The higher authorities must record failures in ACRs as already directed and recover compensation as per laid down scale. Every State/UT in the first instance must ensure that atleast one polluted river stretch in each category is restored so as to meet all water quality standards upto bathing level. This may serve as a model for restoring the remaining stretches."
3. So far as delay is concerned, the appellant has to explain the day to day delay for filing the appeal. On perusal of the application for condonation of delay, there is no explanation of day to day delay and no sufficient cause.
64. In Appeal No. 08/2018 (CZ) dated 11.06.2020, it was directed as follows:
"2. We have heard Learned Counsel for the appellant and perused the record.
3. Madhya Pradesh Minor Mineral Rule, 1996 provides that no quarrying shall be done within a distance of 100 meters from a bridge, national/state highway, railway line, public place, river bank, nalas, canal, Reservoir, dam, any natural water course or any water impounding structure.
4. In light of above guidelines as provided in the Rules, the authority has exercised the power and found that the application moved by the appellant does not qualify the minimum distance as provided under the Rules. Hence, rightly rejected the application of the appellant.
5. The version of the applicant that the order is very much erroneous or unjust or arbitrary, has no footing and no tenable grounds. We do not want to interference into the order of the authority concerned.
6. The grounds and explanations submitted by the appellant are totally sketchy and superficial. The point of limitation is also applicable here and virtually no explanation as to why the matter was not taken up with due earnest, reasonably and expediency has not been properly explained.
7. It is true, when State or its instrumentality is a party, and file appeal with some delay, it may deserve some leverage for official hierarchical steps for permission etc. but a wholly unexplained, reckless and negligent approach of delay cannot be overlooked particularly when it is not the case of applicant that it has taken any action against erring individual.
8. The expression "sufficient cause" in Section 5 of Act, 1963 has been held to receive a liberal construction so as to advance substantial justice and generally a delay in preferring appeal may be condoned in interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to parties, seeking condonation of delay. In Collector, Land Acquisition v. Katiji, MANU/SC/0460/1987 :
1987(2) SCC 107, the Court said, that, when substantial justice and technical considerations are taken 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. The Court further said that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
9. In the matters where action is brought by Government or statutory authority, no person is individually affected and in ultimate analysis it is the public interest which suffers. The decisions of Government are collective and institutional and do 7 not share the characteristic of decisions of private individuals.
The law of limitation though is equal and apply at par to both private individual and Government but where the Government makes out a case of sufferings to public interest owing to acts of fraud and bad faith on the part of its officials and agents, and also, the intention of Government not to allow such officers of doubtful integrity to go scot free, the Court should also come forward to do justice in the interest of public at large, but, a mere eye wash kind of explanation, without any honest intention of State authorities to proceed against tainted officers, or, those who have acted in a bad faith, or, those who have worked negligently, the explanation that delay must be condoned in public interest would be superficial and lacking bona fide, hence difficult to be accepted by Court.
10. In G. Ramegowda, Major v. Special Land Acquisition Officer, Bangalore, MANU/SC/0161/1988 : AIR 1988 SC 897, in para 8 of the judgment, the Court said:
"8........ Therefore, in assessing what, in a particular case, constitutes 'sufficient cause' for purposes of Section 5 it might, perhaps, be some what unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have 'a little play at the joints'. Due recognition of these limitations on Governmental functioning-of course, within a reasonable limits-is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law-officers of the Government placed the Government in a predicament and that it was one of these cases where the mala fides of the officers should not be imputed to Government."
11. In P.K. Ramachandran v. State of Kerala, MANU/SC/1296/1997 : AIR 1998 SC 2276 the Court said:
"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."
10. The Rules of limitation are not meant to destroy rights of parties. They virtually take away the remedy. They are meant with the objective that parties should not resort to dilatory tactics and sleep over their rights. They must seek remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The statute relating to limitation determines a life span for such legal 8 remedy for redress of the legal injury, one has suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would come up, necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The statute providing limitation is founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). It is for this reason that when an action becomes barred by time, the Court should be slow to ignore delay for the reason that once limitation expires, other party matures his rights on the subject with attainment of finality. Though it cannot be doubted that refusal to condone delay would result in foreclosing the suiter from putting forth his cause but simultaneously the party on the other hand is also entitled to sit and feel carefree after a particular length of time, getting relieved from persistent and continued litigation.
12. There is no presumption that delay in approaching the court is always deliberate. No person gains from deliberate delaying a matter by not resorting to take appropriate legal remedy within time but then the words "sufficient cause" show that delay, if any, occurred, should not be deliberate, negligent and due to casual approach of concerned litigant, but, it should be bona fide, and, for the reasons beyond his control, and, in any case should not lack bona fide. If the explanation does not smack of lack of bona fide, the Court should show due consideration to the suiter, but, when there is apparent casual approach on the part of suiter, the approach of Court is also bound to change. Lapse on the part of litigant in approaching Court within time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, would add to his negligence, and would be relevant factor going against him.
13. We need not to burden this judgment with a catena of decisions explaining and laying down as to what should be the approach of Court on construing "sufficient cause" under Section 5 of Act, 1963 and it would be suffice to refer a very few of them besides those already referred.
14. In Shakuntala Devi Jain v. Kuntal Kumari, MANU/SC/0335/1968 : AIR 1969 SC 575 a three Judge Bench of the Court said, that, unless want of bona fide of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
15. The Privy Council in Brij Indar Singh v. Kanshi Ram MANU/PR/0033/1917 : ILR (1918) 45 Cal 94 observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. This principle still holds good, inasmuch as, the aforesaid decision of Privy Council has 9 repeatedly been referred to, and, recently in State of Nagaland v. Lipok AO and others, MANU/SC/0250/2005 : AIR 2005 SC 2191.
16. In Vedabai @ Vaijayanatabai Baburao v. Shantaram Baburao Patil and others, MANU/SC/0382/2001 : JT 2001(5) SC 608 the Court said that under Section 5 of Act, 1963 it should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. In the former case consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard and the basic guiding factor is advancement of substantial justice.
17. In Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and Anr., MANU/SC/0141/2010 : (2010) 5 SCC 459, the Court observed that same yardstick should be applied for allowing application for condonation of delay filed by private individuals and the State, but certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay.
18. The aforesaid decision further makes it clear that it is only certain amount of latitude and not an unguided and unlimited charity in the matter of delay, insomuch so, that ignoring the apparent laxity on the part of State officials, the same must be ignore and merely because delay is on the part of State, it should be condoned. Extension of certain amount of latitude and a complete go by are two different things while the former is permissible but later one is totally prohibited. It is for this reason, this Court find that later aspect has been further explained in much explicit and straight manner in subsequent decisions rendered in 2012, which are noted herein below.
19. In Pundlik Jalam Patil (dead) by LRS. v. Executive Engineer, Jalgaon Medium Project and Anr.
MANU/SC/4694/2008 : (2008) 17 SCC 448, in para 17 of the judgment, the Court said:
"...The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and state claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights."
20. The Court also noticed earlier decisions observing that lenient view in condoning delay may be taken when defaulting parties are the Government and Government Undertaking and in this regard, it proceeded to hold in paras 29 and 30 as under:
10"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."
21. The above view has been followed in Office of the Chief Post Master General and Ors. v. Living Media India Ltd. and Anr., MANU/SC/0132/2012 : AIR 2012 SC 1506, and in para 13 thereof, the Court as said as under:
"13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."11
22. Following various earlier decisions, some of which have been referred hereinabove, including State of Nagaland v. Lipok AO and others (supra) in Maniben Devraj Shah v.
Municipal Corporation of Brihan Mumbai, MANU/SC/0298/2012 : 2012 (5) SCC 157, in para 18 of the judgment, the Court said as under:
"What needs to be emphasized is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."
5. In our view, the kind of explanation rendered in the case in hand does not satisfy the observations of Apex Court that if delay has occurred for reasons which does not smack of mala fide, the Court should be reluctant to refuse condonation. On the contrary, we find that here is a case which shows a complete careless and reckless long delay on the part of applicants which has remain virtually unexplained at all. Therefore, we do not find any reason to exercise our judicial discretion exercising judiciously so as to justify condonation of delay in the present case.
126. Accordingly, the Appeal No. 123/2019 (WZ) and I.A. No. 147/2019 are dismissed.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM August 10, 2020 Appeal No. 123/2019(WZ) MN 13