National Green Tribunal
Ramesh M S/O Mariyappa #92 ... vs 1. The Karnataka State Environment ... on 30 May, 2023
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Unnumbered I.A. of 2023
In
Appeal No. 05 of 2023 (SZ)
(Through Video Conference)
IN THE MATTER OF
1. Sri. Ramesh M.
S/o Sri Mariyappa,
Aged about 45 years,
Residing at 92, Ramagondanahalli,
Near Prashanta Provision Store, Singanayakanahalli,
Bangalore- 560064.
...Appellant(s)
Versus
1. The Karnataka State Enviornment Impact Assessment Authority,
Rep by its Member Secretary,
Room No. 706, 7th Floor, 4th Gate, M.S. Building,
Bangalore- 560 001.
2. The Bangalore Development Authority,
Rep by the Commissioner,
Dr. K. Shivarama Karantha Layout Division,
Kumara Park West, T. Chowdiah Road,
Bengaluru- 560020.
...Respondent(s)
For Applicant(s): Mr. A. Yogeshwaran
For Respondent(s): None
Judgment Reserved on: 1st May, 2023
Judgment Pronounced on: 30th May, 2023.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. The Environmental Clearance which was granted on 08.04.2022 is sought to be challenged by way of an appeal by the appellant/applicant, herein. The procedure being through e-filing, 1 by default the appeal was numbered as Appeal No. 05 of 2023. When the matter was listed for admission, it was found that the said appeal was filed out of time and there was no Interlocutory Application for condonation of the delay accompanying the Appeal. Thereafter, the appellant has chosen to file an application on 02.04.2023 with the peculiar prayer "to declare that the present appeal has been filed within limitation".
2. The Environmental Clearance under challenge was issued on 08.04.2022. Normally the appeal should have been filed within a period of 30 days. It further empowers this Tribunal to allow such Appeals to be filed within a further period not exceeding 60 days, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period. From the date of the Environmental Clearance which is under challenge, it is evident that the appeal which was filed on 10.11.2022 is obviously out of time.
3. As said earlier, there was no application filed for condoning the delay excepting to state that:
Limitation It is submitted that there is no delay in filing the present appeal. The appeal has been filed within 30 days of communication of the EC to the appellant. The EC was provided to the appellant on 11 th October, 2022 vide RTI. The impugned EC has not been communicated in accordance with the law as mandated by this Hon‟ble Tribunal in Save Mon, Medha Patkar and Padmabati Mahopatra Cases. Since the EC was not communicated, it was not accessible to the public and as result, the appellant had to file an RTI and obtain a copy of the clearance and the present appeal is filed within 30 days, thus within limitation.
4. Even after pointing out that there was a delay for which this Tribunal has got no jurisdiction to condone, the applicant has not 2 chosen to file an application to condone the delay but with a prayer referred above. His contention is that Environmental Clearance was not available on the public domain and the appellant was constraint to file an application under the Right to Information Act, 2005 for the Environmental Clarence and the same was provided to him only on 11.10.2022 and thereafter the appeal was filed on 10.11.2022 within 30 days from the communication of the Environmental Clearance to the appellant.
5. The Learned Counsel had submitted that as the Environmental Clearance was not made available on the public domain, it is deemed that the same is not being communicated as required by law. Hence the appeal filed within 30 days from the date of communication of the Environmental Clearance to the appellant should be considered as appeal filed within time. The unnumbered Interlocutory Application is also for a declaration that the appeal is filed within the period of limitation which again would require the appellant to prove that he had just and sufficient cause for not having filed the appeal within time.
6. The case of the appellant is that the impugned Environmental Clearance dated 08.04.2022 has not been communicated as mandated by law as none of the stakeholders have complied with their obligation as mandated by law and have not communicated the Environmental clearance as had been held by this Tribunal in Save Mon Region Federation & Anr vs. Union Of India & Ors, Medha Patkar Ors vs. MOEF & Ors and other cases. 3
7. According to the appellant the 2nd respondent, Bangalore Development Authority (BDA), has not published the notice of the impugned Environmental Clearance in two newspapers, one vernacular language and one in English. The applicants have not found any advertisement in Kannada Newspapers that are in wide circulation in the areas like Prajavani, the leading Kannada Newspaper. The project in question involves 17 villages and it is stated that most of the people do not know how to read, therefore, they have not subscribed for any newspaper. It is the specific case of the appellant that the impugned clearance was not published in major Kannada Daily which amounts to failure on part of the respondents.
8. Further, it is stated that the appellant sought for the help of the others familiar with the English language and searched English newspapers and found that an advertisement dated 12.04.2022 was placed in the Deccan Herald Newspaper dated 13.04.2022. Even that according to him did not contain the details of the project and the clearance granted and it would not be helpful for them to proceed further. The said advertisement has mentioned that the clearance is available on the „PARIVESH‟ portal and according to the appellant the website is extremely complex and is not easy to search for those who are not well versed with English and technology. The appellant has complained that the Environmental Clearance was not communicated to the local body and it is also not available on the BDA website and it is not displayed at the project site also.
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9. In the instant case, the applicant/appellant admittedly has verified the website only after 10.11.2022 i.e. after a gap of seven months from the date of issuance of the said Environmental Clearance.
10. On the basis of the verification of the website, after a gap of seven months from the date of issuance of the Environmental Clearance, the appellant cannot claim that the said Environmental Clearance was not uploaded on the website.
11. It is also to be noted that the project envisaged the acquisition of a total of 3,546 Acres 12 Gts. in about 17 villages and the Environmental Clearance was granted by the SEIAA after a public hearing.
12. The applicant/appellant cannot plead ignorance of the happenings of such a massive project involving the acquisition of a huge extent of private lands and also a project which was subject to the public hearing. It shows that the appellant was not diligent in following the approvals of the project and cannot claim after a gap of seven months that it was not communicated to him.
13. The appeal is provided to the National Green Tribunal Act, 2010 under Section 16(h) which is as follows:
"16 Tribunal to have appellate jurisdiction. -Any person aggrieved by,-
....(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);......
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:
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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.
14. Therefore, it is true that as contended by the appellant that the period of limitation is 30 days from the date on which the order or decision or direction or determination is communicated with a further period of 60 days or an application for condonation of delay before this Tribunal. By virtue of the proviso to Section 16, National Green Tribunal is empowered to condone a delay upto a period of 60 days and the said 60 days period also expired on 07.07.2022. The appellant did not file the appeal on or before 07.07.2022 but file only on 10.11.2022. As per the proviso what this Tribunal is empowered is only to condone a delay of another 60 days provided the appellant can establish sufficient cause for the same.
15. The above proviso is also intended only to benefit those vigilant litigants who were prevented by sufficient cause from initiating the proceedings within the period of limitation prescribed by the National Green Tribunal Act, 2010. The law of limitation finds its root into the two Latin maxims one of which is vigilantibus non dormientibus jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.
16. The Learned Counsel appearing for the appellant had placed reliance on the Save Mon Region Federation v. Union of India, Appeal No. 39 of 2012 where the delay was condoned by this Tribunal on the applicant showing sufficient cause for condoning 6 the delay of 26 days in filing the appeal but the said case, even according to the appellant, the appeal has been filed within the extended period of 60 days but beyond prescribed limitation of 30 days and there being sufficient cause for not filing of the appeal within 30 days. We are in agreement with the above case. But in the instance, the appeal is neither filed within the prescribed 30 days nor within the extended 60 days, beyond which the Tribunal is not empowered to condone the delay.
17. Section 16 of National Green Tribunal Act, 2010 prescribes 30 days for filing an appeal and enables the Tribunal to condone the delay of another 60 days as an extended period. The expression „Prescribed Period‟ finds place in Section 4 of Limitation Act, 1963. The expression „Prescribed Period‟ appearing in Section 4 can only mean or cannot be other than the period of limitation. Any period beyond the "Prescribed Period" during which the Court or the Tribunal has the discretion to allow the person to institute a proceedings cannot be taken to be „Prescribed Period‟. Therefore, in the instance case, the presentation of the Appeal beyond the „Prescribed Period‟ and also the extended period should be deemed to be barred by time.
18. Section 2(J) of the Limitation Act, 1963 defines the period of limitation which means the period of limitation prescribed for any suit, appeal or application by the schedule and prescribed period means the period of limitation commuted in accordance with the provisions of this Act. The Limitation Act, 1963 provides for the limitation of suit, appeals and applications. Section 3 of the Limitation Act, 1963 deals with the bar of limitation which states 7 that even suit instituted or appeal preferred or application made after the prescribed period shall be dismissed.
19. The National Green Tribunal Act, 2010 is a self-contained code which provides for the forum, procedure, limitation, functions and powers of the Tribunal. Section 16 of the Act referred above, particularly, provides for a special limitation period which means it excludes the operation of the general law of limitation. Hence the provisions of the Limitation Act, 1963 cannot be harmoniously constitute with the provisions of the limitation prescribed under the Limitation Act, 1963 as it would defeat the very purpose of the National Green Tribunal Act, 2010.
20. It is also a settled preposition that the limitation provided in special law would prevail over the general law of limitation. Section 33 of the National Green Tribunal Act, 2010 provides for over ridding effect. Section 33 makes it clear that provisions of National Green Tribunal Act, 2010 shall have effect notwithstanding anything inconsistence contained in any other law for the time being enforced or any instrument having effect by virtue of any law other than this Act. Therefore, the special limitation prescribed under the National Green Tribunal Act, 2010 cannot admit or allow any exception to attract the applicability of the Limitation Act, 1963. Even a plain reading of proviso to Section 16 makes it amply clear that the Tribunal is not vested with the power to allow the appeal which is filed beyond the total period of 90 days and the Tribunal ceases to have jurisdiction to entertain an appeal after expiry of the prescribed period of limitation and the extended period of limitation with the power to condone the delay. 8
21. The argument that the stakeholders have the duty to communicate the grant of Environmental Clearance and the onus is on them to demonstrate that the Environmental Clearance was communicated as required by law can be accepted if the appeal was filed with the period of limitation prescribed under Section 16. In the given case, the appellant has not even filed an application to condone the delay but has sought for a declarative relief in an Interlocutory Application to state that the appeal is within time. It is a trite to state that in construing any statutory provision, the fundamental rule of construction is that of literary construction. In a plain reading of Section 16, it is clear that beyond the 30 plus 60 days, the Tribunal cannot condone any delay and we also do not see any reason to expand the scope of the provision to interpret the said proviso. Even if such interpretation is given it would be contrary to the specific language of the Section and would only defeat the very legislative intent and the object behind this provision.
22. It is also to be noted that the above point is no longer res-integra as the same is answered by the Hon‟ble Supreme Court in Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission and Ors., (2010) 5 SCC 23.
23. Following the same, the Principal Bench of the National Green Tribunal in Sunil Kumar Samantra vs West Bengal PCB Ors , M.A. No. 573 of 2013 in Appeal No. 67 of 2013 has held as follows:
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15. We have already noticed that NGT Act is a self-contained code in itself. It provides the forum/procedure that has to be adopted, the limitation period within which the jurisdiction of the tribunal gets invoked, and the power and functions of the tribunal in explicit terms. As a self-contained code, it does not admit of any ambiguity with regard to application of other laws in the adjudicatory process of the tribunal. The legislature in its wisdom has worded provisions of Section 16 of the NGT Act so as to prohibit even filing of an appeal beyond a total period of 90 days. The language of these provisions clearly demonstrates the legislative intendment on excluding application of general law of limitation to this special statute. Such a view would also find clear support from the language of Section 29 (2) of the Limitation Act which postulates that when a special law prescribes for any period of limitation different from the period prescribed in the Schedule to the Limitation Act and the language of the provisions of such special law is indicative of express or implied exclusion, then Sections 4 to 24 (inclusive) of the Limitation Act shall apply only and to the extent they are not excluded by the Special Law. The cumulative reading of Section 16, particularly, the proviso and Section 29 of the Limitation Act leaves no doubt in mind that legislature had clearly intended to exclude the application of the general law of limitation provided under the Limitation Act from the NGT Act. Proviso to Section 16 of the NGT Act uses the expression 'allow it to be filed under this Section within a further period not exceeding 60 days'. The use of the negative language 'not' in the proviso makes it mandatory that appeals cannot be filed after the expiry of total period of 90 days and thus, there is lack of jurisdiction of the tribunal to condone the delay beyond a total period of 90 days. The framers of law, where, in their wisdom wanted to give a benefit and/or restrict or place embargo on exercise of a right, have done so by using specific language in Section 16 of the NGT Act. A special concession is made available to an appellant to file an appeal beyond 30 days, the initial period of limitation prescribed under that provision. The framers there put a specific embargo on the power of the Tribunal not to entertain an appeal after the expiry of a further period of 60 days. Thus the legislature, by necessary implication excluded the application of general law of limitation from the provisions of the NGT Act. At this stage we may refer to the judgment of the Supreme Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133, where the Supreme Court was dealing with the provisions of the Representation of the Peoples' Act, 1951 and the applicability of the provisions of the Limitation Act. The Court in relation to the interpretation of the language of Section 29(2) of the Limitation Act held as:
"17. What we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our 10 view, even in a case where the special law does not exclude the provisions of Section 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."
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31. In terms of the proviso to Section 16 of the NGT Act, the twin consequences that flow from the very language thereof are that firstly, it takes away the right of a party to file an appeal on the expiry of 90 days and simultaneously, it vests a valuable right in the opposite party. Secondly, it takes away the very jurisdiction of the Tribunal to entertain or allow filing of appeal after the expiry of the prescribed period. None of the provisions vest jurisdiction in the Tribunal to condone the delay after the expiry of 90 days, be there a sufficient cause or not for filing the appeal after that period. In the light of this, the contention that the section does not provide for any civil consequences can hardly be accepted. To examine the consequences of a default in a provision, the rule of plain construction should normally be applied. If upon bare reading of the provision consequences are clear and such consequences are in line with the object and purpose of the Act, then there is no occasion for the Court or the Tribunal to read words into the provisions which are non- existent. Wherever the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of an apparent purpose of the enactment, there it may be advisable to modify the meaning of the words. The Court or the Tribunal would adopt an interpretation which is reasonable and sensible rather than that which is none of those things [Sri Nasiruddin v. State Transport Appellate Tribunal, AIR (1976) SC 331]. Often applied principle of interpretation is that where the statutory provision is plain and unambiguous, the Court shall not interpret the same in a different manner only because of harsh consequences arising therefrom [Refer E. Palanisamy v. Palanisamy (D) by Lrs. and Ors., (2003) 1 SCC 123]. Mere inconvenience or some hardship has not been accepted as a relevant consideration for giving different meaning to the provision which otherwise is clear and unambiguous on its plain reading. Limitation is a statute of repose. It ordinarily bars a remedy, but does not extinguish a right. Ordinarily, the words of a statute have to be given their strict grammatical meaning and equitable considerations are out of place, particularly in provisions of law limiting the period of limitation for filing suits or legal proceedings. In General Accident and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, AIR 1941 PC 6, the Supreme Court held as under:
"A limitation Act ought to receive such a construction as the language in its plain meaning imports...... Great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights, yet the statutory rules must be enforced according to their ordinary meaning in these and other like cases."
32. The provisions providing for period of limitation cannot be so liberally construed so as to not only deprive the right to other party to whom a benefit has accrued, but even frustrate the very purpose of such provision. In the case of P.K. Ramachandran v. State of Kerala & another, AIR 1998 SC 2276, the Supreme Court held as under:
"6. 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. The discretion exercised by the High Court was, thus, neither proper nor judicious.11
The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."
33. Normally, the statutory period of limitation provided in a provision like under the NGT Act, is un-extendable by recourse to provisions of Section 5 of the Limitation Act. While applying the provisions of limitation, besides applying the rule of strict construction, the Tribunal has to keep a balance between rival rights of the parties; appellant who has lost his right or whose remedy is barred by time and other to whom a benefit has accrued as a result of loss of right of the first. At this stage, it may be appropriate to make reference to a recent judgment of the Supreme Court, in the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others, Civil Appeal Nos. 8183-8184 of 2013 (Arising out of SLP (C) Nos. 24868- 24869 of 2011), where the Court was primarily concerned with the condonation of delay in filing an appeal. The Court adverted itself towards the respective rights and obligations of the parties and held as under:
"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play."
In light of these principles, the contention of the appellant that the National Green Tribunal is the forum to which first appeal is provided against the orders specified in Section 16 of the NGT Act and that these provisions should be construed liberally, can hardly be accepted. Also there is no question of depravation of right to appellant. The right of appeal is a statutory right and can be exercised within the prescribed period of limitation. If a party chooses to sleep over its right and permits the remedy available to it to become barred by time, then it can hardly be heard to contend that it has lost a valuable right and the result is unjust. Such interpretation would be a normal corollary of application of rule of 'plain construction'. This would be in line with the object and purpose of the Act and would also subserve the cause of justice. This interpretation would not preclude any litigant from taking recourse to an appropriate remedy prescribed in the Act and in accordance with law.
34. The provisions of Section 16 of the NGT Act do not admit of any ambiguity or absurdity. It clearly provides the period of limitation and the consequences of default for not filing the appeal within the prescribed period of limitation. We do not see any reason to give any other interpretation to the provisions of Section 16 of the NGT Act than the one which the legislature in its wisdom has expressed in plain and unambiguous terms.
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53. From the above discussion, it is clear that provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, do not impose any embargo upon the power of the Court to extend the time. The provision is in the domain of procedural law and was held to be „directory‟ by the Supreme Court. On the contrary, the provision of Section 16 of the NGT Act is in unambiguous language and imposes restriction upon the power of Tribunal to permit even institution of an appeal beyond the prescribed period. Besides this and for the reasons afore-recorded, the provision has to be construed as „mandatory‟.
54. Having dealt with the various aspects of this case and the rival contentions raised on behalf of the respective parties we are of the considered view that the provisions of Section 16 of the NGT Act are unexceptionally „mandatory‟. The said provision clearly conveys the legislative intent of excluding the application of the provisions of the Limitation Act, 1963. Further, with approval we reiterate the 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.
55. Accordingly, we hold that the present appeal is barred by limitation and the Tribunal has no jurisdiction to condone the delay of 104 days as prayed. Resultantly, the application for condonation of delay is dismissed and appeal does not survive for consideration......"
24. In the above referred National Green Tribunal order, the impugned Environmental Clearance was issued on 10.04.2012 and appeal ought to have filed on or before 10.07.2012 but the same was filed on 29.05.2013 with a delay of 323 days. There was a Writ Petition filed on 17.05.2012 and the same was dismissed as withdrawn on 31.01.2013. Even excluding the time taken before the Hon‟ble High Court in pursuing the Writ Petition there was a delay of 104 days which is beyond the prescribed and the extended period referred to in the proviso to Section 16.
25. The National Green Tribunal that decided that it has got no vested powers to condone the delay beyond the period of special limitation mentioned in the statute while deciding the application for condoning the delay. However in this case as mentioned supra, there is no such application for condonation of delay is taken out 13 by the appellant, instead the prayer is couched in such a manner that it calls upon this Tribunal to decide the question of delay in an application not styled as a delay petition.
26. We see no difference between the two cases and when the jurisdiction of this Tribunal is ousted beyond the period of 30 plus 60 days, we declare that the Appeal filed by the appellant is out of time and hence the Application filed by the applicant is rejected as not maintainable. As the appeal is filed out of time, any petition to condone the delay also would not be maintainable.
27. In view of the above, the Appeal No. 05 of 2023 is also rejected.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No Unumbered I.A/2023(SZ)in Appeal No.05/2023(SZ) 30th May, 2023. (AM) 14 Before the National Green Tribunal Southern Zone (Chennai) Unnumbered I.A. of 2023 In Appeal No. 05 of 2023 Sri. Ramesh M. Vs. The Karnataka, SEIAA and Ors.
Appeal No. 05/2023(SZ) 30th May, 2023. (AM) 15