NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
M.A. No. 52 of 2012
Appeal No. 15/2012
Wednesday, the 30th day of May, 2012
1. Hon'ble Shri Justice C. V. Ramulu
2. Hon'ble Dr. Devendra Kumar Agrawal
B E T W E E N:
1. Ossie Fernandes
Coastal Action Network,
10, Thomas Nagar, Saidpet,
Chennai - 600 015 .... Appellant
1. Ministry of Environment & Forests,
Rep. by its Secretary
CGO Complex, Lodhi Road,
New Delhi - 110 003
2. Principal Secretary to the Government,
Environment and Forests Department,
Government of Tamil Nadu,
Ground Floor, Panagal Buildings,
1, Jennis Road, Saidapet,
Chennai - 600 015
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3. M/s Chettinad Power Corporation
Rep. by its Managing Director,
Rani Seethai Building,
603, Anna Salai,
Chennai-600 006 .... Respondents
(Advocates appeared: Mr. T. Mohan and Mr. Pritha Srikumar Iyer for appellant, Ms. Neelam Rathore with Mr. Prasoon Sharma for R-1, Mr. S. Gurukrishna Kumar, Additional Advocate General for Tamil Nadu with Mr. K. S. Saravanan and A. Prasanna Venkat for R-2, Mr. C. S. Vaidyanathan, Senior Advocate with Mr. G. Umapathy and Mr. T. Balaji for R-3.)
(Judgment delivered by the bench)
1. This appeal is filed challenging the order dated 02.06.2011 in file No. 11- 147/2010 of the Ministry of Environment and Forests, Government of India, where under the Respondent No. 3 was granted CRZ Clearance for setting up of jetty, intake and outfall facility for 1200 MW (2X600) Coal Based Thermal Plant at Manickapanngu, Nagapattinam District.
2. According to the appellant, he is the Co-convenor of the Coastal Action Network, which consists of a group of organizations, fishing communities, environmental activists and lawyers. The objective of the network is to ensure protection of the environment and biodiversity in coastal area and protection of livelihood of persons living in these areas.
The National Environment Policy was approved by the Union Cabinet on 18.05.2006, to effectuate the principles underlying Articles 48A and 51A(g) of the Constitution of India. The preamble of the said policy reads as under:
"Sustainable development concerns in the sense of enhancement of human well-being, broadly conceive, are a recurring theme in India's development philosophy. The present day consensus reflects three foundational aspirations; First, that human being should be able to enjoy a decent quality of life; second, that humanity should become capable of recognizing the finiteness of the biosphere; and third, that neither the aspiration for the good life, nor the preconisation of bio-physical limits should preclude the search for greater justice in the world."
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The policy further states that:
"The poor are also more vulnerable to loss of resilience in ecosystems. Large reduction in resilience will mean that the ecosystems, on which livelihoods are based, break down, causing distress. The loss of the environmental resource base can result in certain groups of people being made destitute, even if, overall the economy shows strong growth."
3. The challenge to the impugned order is made on various grounds. However, there is no necessity of going into all the details. Since there is a delay of (58) days in filing the appeal, the present M.A. has been filed seeking condonation of delay in filing the appeal against the order dated 02.06.2011. The Respondent No. 3, filed a counter opposing the condone delay application. Therefore, the matter was taken up with the consent of both the parties for deciding the preliminary issue of limitation.
According to the learned counsel for the appellant, there is a delay of (58) days in filing the appeal. Under the impugned order dated 02.06.2011, the Respondent No. 3, was granted CRZ Clearance by the Respondent No. 1. Though, such an order was passed on 02.06.2011 granting CRZ Clearance, this appeal is filed into NGT only on 24.03.2012. It is his case that the appellant was not aware of the order dated 02.06.2011 and neither it was available on the website of the Ministry of Environment & Forests, Government of India, nor it was published in the local newspapers as required by the Coastal Regulation Zone, Notification, 2011. The appellant came to know about the CRZ Clearance granted by the Respondent No. 1 dated 02.06.2011, only when a reply has been filed (by respondent No. 6 in Appeal No. 12/2011 before this Tribunal), in the appeal filed by the appellant herein, challenging the Environmental Clearance granted on 20.01.2011, in favour of Respondent No. 3 herein on 27.12.2011. Immediately, the order dated 02.06.2011 was obtained and the present appeal is filed on 24.03.2012. Thus, there is a delay of (58) days in preferring the present appeal, from the date of knowledge and the same is within (60) days from the date of knowledge and this Tribunal has ample powers to condone the delay in the interest of justice.
4. Whereas, it is the case of the Respondent No. 3 that the CRZ Clearance granted in its favour was made available on the website of the Ministry of Environment & Forests, Government of India within one week from the date of the order. Further the issuance of CRZ Clearance in favour of R-3 was duly
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published in the local newspapers both in English and vernacular (Tamil) on 08.06.2011. The appellant participated in the public hearing conducted on 21.05.2010 for the purpose of grant of EC to the project (which is the subject matter of another appeal No. 12 of 2011) and raised several objections. He has filed the present appeal (Appeal No. 15 of 2011) before this Tribunal against the order dated 02.06.2011 granting of CRZ clearance, with such an abnormal delay of about (300) days. Appellant who claims to be Co-convenor of several groups of activists cannot pretend his ignorance as to publication in the local newspapers and displaying the order dated 02.06.2011 on the website of the Ministry of Environment and Forests. The appellant claims himself to be an enlightened citizen and he cannot, having already filed an appeal No. 12 of 2011, could not have filed an appeal against the order dated 02.06.2011 with such an abnormal delay of more than (10) months. The CRZ Clearance was within his knowledge but somehow he did not file any appeal till 24.03.2012. There is no provision under the NGT Act for condoning the abnormal delay of about (10) months in filing the appeal against an order passed by the Ministry of Environment and Forests. Further, there is no sufficient cause shown for condoning such a delay. Even otherwise the provisions of law, does not allow condoning such an abnormal delay.
5. We have given our earnest consideration to the respective submissions made by the learned counsel on either side and perused the material made available on record.
Admittedly, the impugned order was passed on 02.06.2011 and appeal is filed on 24.03.2012 and thus, there is a delay of more than (10) months in filing the appeal. However, it is the argument of the learned counsel for the appellant that the appeal is filed with a delay of (58) days only and the delay has to be reckoned from the date of communication. The appellant came to know about the impugned order dated 02.06.2011 only on 27.12.2011. Therefore, it must be deemed that the order was communicated to the appellant as required under the law on 27.12.2011 and thus, the delay caused is only (58) days in filing the appeal and the same is neither deliberate nor wanton. Even the Section 16 and proviso thereof speaks that any person aggrieved:
"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."
Therefore, the application for condoning the delay deserves to be allowed.
6. We are not in agreement with the arguments advanced by the learned counsel for the appellant. This Tribunal can entertain an appeal filed within 30 days from the date of communication and it may condone a further delay of 60 days in presenting the appeal in an appropriate case, if sufficient cause is shown. The assertion made by the appellant and the Standing Counsel for Ministry of Environment and Forests that the CRZ Clearance dated 02.06.2011 was very much available on the website of the Ministry of Environment and Forests and the same was further published in the local newspapers both in English and vernacular (Tamil) on 08.06.2011 could not be met with properly, by the applicant/appellant except making a vague denial. The publication of the grant of CRZ clearance dated 02.06.2011 in the local and vernacular (Tamil) newspaper on 08.06.2011 is part of the record placed before us.
Further, the appellant claims that he is Co-convenor of the Coastal Action Network, which consists of a group of organizations, fishing communities, environmental activists and lawyers. The objective of the network is to ensure protection of the environment and biodiversity in coastal areas and protection of livelihood of persons living in these areas. There are about (35) organizations which together constitute the Coastal Action Network, inter-alia, the Tamil Nadu Rural Re-construction Movement (TNRRM), Society of Integrated Rural Development (SIRD), Human Rights Foundation, Sneha. Then, how with such organizational background, the appellant missed the track is not explained.
We are also aware that ours is only a Statutory Tribunal and we cannot stretch the meaning of the provisions of law beyond their plain and express meaning. Further, the word communication in the context of this case has to be necessarily construed as placing the matter on the website of Ministry of Environment and Forests. In fact, it was placed within one week from the date of the order and the same was further published in the newspapers on 08.06.2011. The question of communication of a hard copy to the appellant does not arise, since there was no public hearing process involved in the CRZ Clearance nor there was any specific representation made by the appellant in this regard before the CRZ authorities. Therefore, there was nobody before the
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CRZ authorities who can be called to be interested parties requiring communication of the impugned order by name. Thus, the simple meaning of communication can be only placing the matter on website and publishing in the newspapers, for the information of the general public to enable any person (citizen) to challenge the same, if he/she is interested in protecting the environment (Articles 48A and 51A(g) of the Constitution of India) and apprehends great threat of the CRZ clearance to the project. Contextually speaking, no other meaning can be derived. Therefore, the period of limitation runs from the date of placing the CRZ clearance on the website and/or publishing the same in the newspapers.
No doubt, (30) days period is allowed for filing the appeal and further period of (60) days can be condoned in a given case, if sufficient cause is shown. This is not one such case. This is a case where everything was available on the website of the Ministry of Environment and Forests and was properly published as required by the Notification 2011 in the local newspapers both English and vernacular (Tamil) as early as on 08.06.2011. Thus, the delay caused cannot be said to be only (58) days in filing the appeal. The delay in filing the appeal is about (10) months and such an abnormal delay cannot be condoned under the provisions of NGT Act.
Therefore, the present MA no. 52 of 2012 seeking conodonation of delay is liable to be dismissed and is accordingly dismissed. In the result the appeal also is liable to be rejected and accordingly rejected. No costs.
(Dr. Devendra Kumar Agrawal) (Justice C V Ramulu) Expert Member Judicial Member
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