Janahit Seva Samiti, Madban & Anr vs Union Of India & Ors on 24 May, 2012

National Green Tribunal

BEFOFRE THE NATIONAL GREEN TRIBUNAL, NEW DELHI (PRINCIPAL BENCH)

MISC. APPLICATION NO. 59/2011

ARISING OUT OF

APPEAL No. 16 of 2011

1. Janahit Seva Samiti

Through its President, Mr. Pravin Gavankar Residing at madban, Taluka, Rajapur District Ratnagiri, Maharashtra

2. Dr. M.N. Desai

P/O Mithgavane

Taluka Rajapur, District Ratnagiri

Maharashtra - 416702

APPELLANTS

VERSUS

1. Union of India

Through the Secretary

Ministry of Environment and Forests

Paryavaran Bhawan, CGO Complex

Lodhi Road, New Delhi - 110003

2. Maharashtra Pollution Control Board

Through the Member Secretary

Kalpataru Point

3rd & 4th Floor, Sion Matunga Scheme Road No.8, Opp. Cine Planet Cinema

Near Sion Circle, Sion (East), Mumbai - 400 022

3. M/s Nuclear Power Corporation of India Ltd. Through its Managing Director

Entrance-2, Nibhikiya Urja Bhawan

Anushaktinagar, Mumbai - 400094

RESPONDENTS

Counsel for Appellant

Mr. Ritwick Dutta

Ms. Srilekha Sridhar

Counsel for Respondent(s):

Ms. Neelam Rathore

Mr. Mukesh Verma

Mr. Ajay Kumar Jha

Ms. Nupur Sharma

JUDGMENT

PRESENT:

Justice A.S. Naidu (Acting Chairperson) Prof. Dr. R. Nagendran (Expert Member)

Dated 24th May, 2012

Invoking jurisdiction Under Section 16 (h) of the National Green Tribunal Act, 2010, the Environment Clearance (EC) granted to M/s Nuclear Power Corporation of India Limited (Respondent No. 3) for setting up Jaitapur Nuclear Power Park (6x1650 MWe) at village Madban, Taluka Rajapur, District Ratnagiri in the Maharashtra State by order dated 26th November, 2010, passed by the Ministry of Environment and Forests (MoEF) is assailed in Appeal No. 16 of 2011.

2. Section-16 of the NGT Act grants liberty to a person aggrieved to assail an EC granted under Environment (Protection) Act, 1986 within a period of thirty days. The proviso to the said

Section empowers to entertain an appeal, if the Tribunal is satisfied that the appellant was prevented by sufficient cause from filing the appeal within a further period not exceeding sixty days.

In the case in hand, admittedly the order sought to be impugned was passed on 26th November, 2011 and the appeal was filed on 17th September, 2011. Thus, there is a delay of 294 days.

3. According to the appellants, the NGT Act came into force with effect from 18th October, 2010, but then the Tribunal started functioning only from June, 2011, as such the appellant could not present the appeal within the time specified either Under Section- 14 or Under Section-16 of the NGT Act. It is further averred that the appellants along with other persons who were likely to be affected by the project combindly took a decision after discussion interse between them that the order granting EC to the proposed project, required to be assailed as the project is likely to cause hazard to the environment as well as ecology. They took all effective and diligent steps to file the appeal as early as possible but then as the forum was not available it was not possible for them to do so. Relying upon the order passed by the Hon'ble Supreme Court in the case of Union of India v/s Vimal Bhai and Others SLP (civil) No(s). 12065/2009, Learned Counsel for the appellant submitted that the Hon'ble Supreme Court considering the difficulties had extended the period for filing appeals and as such this Tribunal should take a liberal view and condone the delay.

4. Respondents on the other hand filed a detailed objection and strongly opposed the petition for condonation of delay. Apart from denying the facts stated in the petition for condonation of delay, it is stated that by afflux of time a right has accrued upon the respondent and the same may not be taken away by entertaining a time barred appeal. Further, it is submitted that the Respondent has incurred huge expenses and has substantially gone ahead with the project and any hindrance at this stage would cause great prejudice.

5. In course of hearing, Learned Counsel for the Respondents referred to several judgments of the Hon'ble Supreme Court in support of the submissions that this Tribunal being a Statutory Authority, has to discharge its function in consonance with the provisions of the Statute and as Section-16 of the NGT Act clearly stipulates that an appeal filed beyond sixty days should not be entertained, the Tribunal has no power to condone the delay. The words not exceeding sixty days used by the legislature in Section- 16, it is submitted, are very vital and are binding. That apart, as the NGT Act, a special statute stipulates a time limit for preferring an appeal, the provisions of Limitation Act are not applicable. The appeal having been presented much after ninety days, it is a fit case where the delay should not be condoned.

6. Heard Learned Counsel for the Parties diligently, the provisions of Section-16 of the Act are very clear and specific, the said provision circumscribe the discretionary power of this Tribunal.

The language of Section-16 of the NGT Act is also very explicit, and 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, extend the time for filing for a further period not exceeding sixty days. The language used thus, leaves no ambiguity 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."

5. The Hon'ble Supreme Court in the case of Vimal Bhai and Others referred to Supra considering the difficulties of litigants with regard to filing of appeals due to delay in establishing the NGT directed as follows :-

"Those, who could not file petitions before the National Green Tribunal because it did not become functional, may do so within a period of 60 days from 30.5.2011. The National Green Tribunal shall give wide publicity to this direction so that aggrieved parties can file appropriate petitions etc., within 60 days from 30.5.2011. The petitions which are filed within the aforesaid period shall not be treated as barred by time and be decided on merits. The

parties shall also be entitled to file applications for interim relief before the National Green Tribunal."

6. Admittedly, in the case in hand the order impugned was passed on 26th November, 2010, the NGT was established on 18th October, 2010, thus an appeal against the order was required to be filed before this Tribunal within the time prescribed by NGT. However, the NGT started functioning in a full-fledged manner from the month of June 2011, thus there was no embargo for filing any appeal in June 2011. That apart, the Hon'ble Supreme Court further extended the period for filing an appeal by sixty days commencing from 30th May, 2011, thus the last date for filing an appeal extended till 30th July, 2011. The appellant failed to avail the opportunity granted by the Hon'ble Supreme Court and did not file the appeal within extended period too. The appeal was filed only in the month of September, 2011. Thus, the same is grossly barred by time.

7. As stated earlier, this Tribunal being a Statutory Authority is bound by the provisions of the Statute and cannot traverse beyond the provisions of the NGT Act, Under Section-16 there is clear bar not to entertain an appeal filed beyond sixty days. In order to remove the difficulties for filing an Appeal during transitory period that is abolition of National Environment Appellate Authority (NEAA) and Constitution of NGT, the Hon'ble Supreme Court was pleased for extend the time for filing the appeals for which cause of

action had aroused by sixty days commencing from 30th May, 2011. The appellant has not availed the said concession / opportunity.

Though this Tribunal is liberal in condoning the delay, as and when it finds sufficient reasons and is not super-technical, but then being a Statutory Tribunal it cannot ignore the period stipulated in the Statute.

8. In view of the discussions made above, we are not inclined to condone the delay and dismiss this petition. Consequently, the Appeal also stands dismissed.

Prof. Dr. R. Nagendran Justice A.S. Naidu Expert Member Acting Chairperson

Dharamvir

24th May, 2012