National Green Tribunal
Mr. A.S. Mani vs Seiaa, Tamil Nadu & Ors on 27 March, 2012
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BEFORE THE NATIONAL GREEN TRIBUNAL
NEW DELHI,
(PRINCIPAL BENCH)
M.A NO. 12/2012
ARISING OUT OF
APPEAL No. 5 of 2012
A.S. Mani
President of Amman Lift Irrigation Society,
No. 5/221, Cheyampalayam,
Paramathi Vellur Taluk,
Namakkal District,
Tamil Nadu-637 207
Appellant/Petitioner
Versus
1. The State Level Environment Impact
Assessment Agency, Tamil Nadu,
Rep. by its Member Secretary,
4-B, Pangal Maligai,
No.1, Jeenis Road, Saidapet,
Chennai-600 015.
2. Tamil Nadu Polution control Board,
Rep. by its Chairman
76-Mount Salai, Guindy,
Chennai-600 032.
3. The District Collector,
Namakkal District,
Collectorate,
Namakkai-637 001.
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4. Kabilarmalai Panchayat Union,
Re. by its Commissioner,
Kabilarmalai, Paramathi Taluk,
Namakkal District,
Tamil Nadu-637 207.
Respondents
Counsel for Appellant:
Shri Ashok Panigrahi, Advocate alongwith
Ms. Asmita Singh, Advocate
Counsel for Respondents:
Shri G.Sivabalamurugan, Advocate
ORDER
PRESENT:
Justice A.S. Naidu (Acting Chairperson) Dr. G.K. Pandey (Expert Member) ....................................................................................................
Dated 27th March, 2012 ....................................................................................
JUDGMENT BY THE BENCH
1. The Appellant claims to be an agriculturist possessing lands adjacent to the project proposed to be set up by M/s.
Sri Raasi Industries India Pvt. Ltd. He is aggrieved by the Environmental Clearance (EC) granted by the State Level Environment Impact Assessment Authority, Tamil Nadu to M/s Sri Raasi Industries India Pvt. Ltd. (Respondent No.6) for establishment and production of MS Ingots and TMT 3 Bars and Rods at S.F. No.100/2,100/3A, Perunkuruchi Village, Paramati Vellur Taluk, Namakkal District, in the State of Tamil Nadu vide order dated 9th February, 2011 (Annexure A/1). In this Appeal the Appellant has made following prayer:
i) Call for the records of Respondent No.1 culminating in order Letter No. SEIAA/TN/EC/3(a)/013/F-271/2011 dated 9th February, 2011 and quash the same.
ii) Pass such other order/s as may be deemed fit and proper in the facts and circumstances of the case.
2. This M.A. is filed alongwith the Memorandum of Appeal and is purported to be one under Section-16 of the National Green Tribunal Act, 2010. The prayer in this MA is to condone the delay in filing the Appeal.
3. Respondent No. 6 had filed a Caveat Petition and as such notice of the Appeal was served on it. On 15th February, 2012, when the matter was taken up Respondent No.6 appeared through Counsel and prayed for time to file objections to the Application for Condonation of delay, and time was granted. A detailed Counter Affidavit had been filed on behalf of Respondent No.6 repudiating the averments made in the petition for condonation of delay and 4 taking the stand that the appeal, being grossly barred by time, may be dismissed on that ground alone.
4. In course of hearing, Mr. Panigrahi, Learned Counsel for the Applicant, tried his level best to convince us that the Appeal should be construed to be one under Section 14 of the National Green Tribunal Act, 2010, for which the period of limitation is six months from the date when cause of action arose. Relying upon the orders passed by the Supreme Court in the case of Union of India vs Vimal Bhai and Others, Special Leave to Appeal (Civil) No. 12065/2009, Mr. Panigrahi submitted that as the Zonal Benches, in accordance with the direction issued by the Hon'ble Supreme Court, have not started functioning as yet, a liberal view should be taken and the delay should be condoned.
5. For appreciating the submissions made, it would be just and proper to refer to some of the dates as well as undisputed facts, and law on the point.
Admittedly, the Appellant has prayed to quash the order dated 9th February, 2011 passed by the State Level Environment Impact Assessment Authority, Tamil Nadu, granting EC for the project of Respondent No.6. Section- 16(h) of the NGT Act, 2010, reads as follows:-
5"any person aggrieved by: 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), Within a period of 30 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 said period, allow it to be filed under this Section, within a further period, not exceeding sixty days".
A cumulative reading of Section-16 reveals that the proviso confers upon the Tribunal, apart from the Appellate jurisdiction against certain order or decision, a time limit of 30 days for entertaining an Appeal. It also empowers the Tribunal to entertain an Appeal filed within a further period, not exceeding sixty days, subject to condition that the Tribunal is satisfied that the applicant was prevented by 6 sufficient cause from filing the Appeal, within the time prescribed, i.e. within thirty (30) days.
6. According to Mr. Panigrahi, this Appeal should be treated to be one under Section-14 of the NGT Act irrespective of the nomenclature mentioned in the Memorandum of Appeal. No doubt, a Court, if otherwise has power, under an Act, should not denude a litigant from approaching only on the ground that the nomenclature and or Section under which the Appeal/Application was filed is wrongly mentioned. In view of the aforesaid clear position, it would be prudent to examine the scope and ambit of Section-14 of the NGT Act.
Sectiono-14 stipulates that the Tribunal shall have the jurisdiction over all Civil cases where substantial question relating to environment (including enforcement of any legal right relating to environment), is involved, and such question arises out of the implementation of the enactments specified in Schedule-I. In the case in hand, as stated earlier the only prayer made by the Applicant is to set aside the order dated 9th February, 2011 passed by Respondent No.1 The said order as would be evident by Annexure A/1 is the Environmental Clearance granted by State Level Environment Impact Assessment Authority, Tamil Nadu. An appeal against the order lies under Section 16 of the NGT Act. Thus the cause of action for filing the appeal squarely 7 comes within the purview of Section-16 and not under Section-14 of the NGT, Act, 2010.
7. Before approaching this court, the Appellant had assailed the said order before the Hon'ble High Court of Madras in WP Sr. No.31374 of 2011 on 18th March, 2011. The said Writ Petition came up for hearing on 24th August, 2011. The Hon'ble Court was pleased to direct the Appellant to approach this Tribunal and the case records were returned to the Learned Counsel for the Appellant by officer order dated 26th August, 2011. Thereafter the present Appeal was filed on 20th January, 2012. Mr. Panigrahi, drawing our attention to the aforesaid dates submitted that as the appellant was bonafidely pursuing the lis before the Madras High Court, this Tribunal should take a liberal view and condone the delay in presenting the Appeal.
To appreciate the said submission it would be prudent to recapitulate the dates once again.
Admittedly the impugned order was passed on 9th February, 2011. The time prescribed for preferring an Appeal as per Section-16 of the NGT Act is 30 days. The Appellant filed a Writ petition before the Madras High Court on 18th March, 2011. The said Writ Petition was disposed of on 24th August, 2011 and the brief was returned to the 8 Appellant. The Appellant presented the Appeal before this Tribunal on20th January, 2012.
Even if, the time spent by the Appellant for prosecuting the case before the Hon'ble Madras High Court as well as the time spent for taking return of the brief is taken into consideration, it appears, there is a delay of more than 90 days. According to Mr. Panigrahi, the said delay satisfies the expression sufficient clause, as the Appellant was prosecuting the case before the Hon'ble Madras High Court bonafidely and the delay should be condoned.
The expression of sufficient cause is found in various Statutes including in Section-16 of the NGT Act, 2010. The said expression essentially means to be "adequate or enough". There cannot be any tight jacket formula for accepting or rejecting the explanation furnished explaining the delay caused for filing the Appeal. In the instant case, the explanation offered by the Appellant is that, he bonafidely approached the Hon'ble Madras High Court and the case was pending before the said Hon'ble High Court from August, 2011 till January, 2012.
Be that as it may, the language of Section-16 of the NGT Act is very explicit. It clearly stipulates the period of limitation for filing of an appeal to be thirty days and further mandates that the Tribunal may, on given circumstances, 9 extend the time for filing for a further period not exceeding sixty days. The language used thus, makes the position very explicit to the extent that the legislature intended the Tribunal to entertain the Appeal by condoning the delay only upto sixty days after the expiry of thirty days, which is the normal period for preferring an Appeal. Therefore, there is complete exclusion of Section-5 of the Limitation Act. See:
"Singh Enterprises Versus. Commissioner of Central Exercise, Jamshedpur and others, (2008) 3 SCC-70 and Ram Sunder Ram Versus Union of India and Others, (2007) 13 SCC-255".
The proviso to Section-16 of the NGT Act unambiguously makes the position crystal clear that the Tribunal, has no power to allow the Appeal to be entertained beyond the period of thirty plus sixty i.e. ninety days on any account. In other words an Appeal before the Tribunal is required to be filed within thirty days from the date of the communication of the decision or order. If the Tribunal is satisfied that the Appellant was prevented by sufficient cause, it can allow the Appeal to be filed within a further period, not exceeding sixty days. The language used in the Section thus makes the position crystal clear that the legislature intended the Tribunal to entertain the Appeal only by condoning the delay up to sixty days after expiry of thirty days and not thereafter. The said being the 10 intention of the legislature, the Tribunal has no jurisdiction to condone the delay after ninety days.
8. In the case in hand, after excluding the period spent by the Appellant before the Madras High Court, and even after excluding the time spent for obtaining the copies, there is a delay of more than 90 (ninety) days. The delay beyond 90 days cannot be condoned and the Appeal cannot be entertained having become barred by time. The M.A. accordingly stands dismissed, consequently the Appeal is also dismissed.
9. Parties to bear their own cost.
Dr. G.K. Pandey Justice A.S. Naidu Expert Member Acting Chairperson Durga Malhotra 27th March, 2012