BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE MISC. APPLICATION NO.147/2014 in APPEAL NO.27 OF 2014 CORAM
:
HON’BLE SHRI JUSTICE V.R. KINGAONKAR (JUDICIAL MEMBER) HON’BLE DR. AJAY A.DESHPANDE (EXPERT MEMBER)
In The Matter Of:
1. VARIYA GANDABHAI, S/o Mavjibhai, Aged 68 years, R/o Bhagol Vas village Gyaspur, Tal. City- District Ahmedabad, APPELLANT(S)
Gujarat,,, & Ors…3..
VERSUS
1. UNION OF INDIA, Through Secretary, Ministry of Environment, Forests And Climate Change, Indira Paryavaran Bhavan, Jor Bagh Road, New Delhi-110003. And others 5… ………RESPONDENTS (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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Counsel for Appellant(s): Mr Ritwick Dutt, Mr. Rahul Choudhary.
Counsel for Respondent(s):
Shweta Busar Adv holding for Mr. Ranjan Nehru For Respondent No.1. Mr. Parth H. Bhatt for Respondent Nos.2,4. Mr. Viral K. Shah for Respondent No.3 Mr. Ashish H. Shah for Respondent No.6. Date: March 20th 2015.
P.C.
1.
By this Application, the Appellants, herein seek
condonatiion of delay caused in filing of Appeal bearing Appeal No.27 of 2014. It may be stated that the Appeal came to be filed on August 26th, 2014, challenging order of Environment Clearance (EC), passed by MoEF on December 16th, 2013. Respondent No.6, is the Project Proponent (PP). The project is for installation of Central Effluent Treatment Plant (CETP), on outskirts of Ahmedabad city, allegedly for reduction of load of already existing STP by installation of new CETP, by updating and using modern technology, so as to avoid pollution. (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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2.
It is not necessary to set out all the facts related
to methodology of functioning of the proposed CETP, because presently we are concerned with the preliminary issue of limitation and scope of the Application is, therefore, limited to determine whether the Appeal is filed within period of thirty (30) days as prescribed under Section 16 (1) of the National Green Tribunal Act, 2010. Still, however, it is important to note that there exists old STP, which is being run and the new project is being sought to be operated for the purpose of reduction of strain on existing STP and to accommodate excessive sewage, slurry and effluents, which are being treated by use of existing system. It is undisputed that Ahmedabad Municipal Corporation (AMC), acquired about 500Acres of land way back to operate the sewage treatment and effluent treatment in the area of Industrial Zone. PP submitted an Application to MoEF for grant of EC, inasmuch as though the Application could be considered by the local authority i.e. State Level Environmental Impact Assessment Authority (SEIAA), under normal circumstances, yet, it being in the proximity of the industrial zone of Ahmedabad, which is critically polluted area, as per the EIA Notification dated 14 th
(J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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September, 2006, the same was required to be treated as Project in category ‘A’. obviously, his Application was processed by the MoEF as per procedure laid down under the EIA Notification dated 14th September, 2006, by following relevant norms, namely; (1) Screening, (2) Scoping, (3) Public Consultation and (4) Appraisal. It appears
that
thereafter
the
impugned
EC
dated
16.12.2013, was granted. 3.
Undisputedly, the Appellant Nos. 1,2 and 4,
participated in public consultation process, when the public hearing was held on 8.8.2012, during process of public hearing held by the competent public authority at stage No.3, of the above stages. Thus, it is imperative that the Appellant Nos. 1,2 and 4, could be attributed with the knowledge that the process which was going on regarding happening in regard to the project in question, notwithstanding the fact that they may not have direct knowledge of subsequent grant of EC. 4.
According to the Appellants, they were not aware
of the impugned EC until they came to know regarding the same during pendency of Writ Petition bearing Writ Petition No.177 of 2014, on 12th June, 2014, till their Advocate gave them intimation about the same, on (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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perusal of the documents and reply affidavit, which he had perused that was submitted by PP – Respondent No.6, in that Writ Petition. They submit that it was for such a reason that said Writ Petition No.177 of 2014, was disposed of as ‘infructuous’ by the Hon’ble High Court of Gujarat, because they had challenged the work of CETP is without obtaining EC and in the meanwhile, grant of EC was noticed as per the reply affidavit filed by the PP. It is case of the Appellants that they filed Appeal within ninety (90) days after obtaining knowledge of EC and thereafter they were required to prepare Appeal in consultation with the Advocate and on perusal of relevant legal material, as well as after obtaining other documents. They would submit that they had no reason to commit delay in filing of the Appeal, had there been earlier knowledge with them about the EC. They allege that delay is unintentional, well justified and, therefore, should be condoned. 5.
The Project Proponent (PP)- Respondent No.6,
alleges that the Appellants had full knowledge of the impugned EC, due to the fact that publication of grant of EC was duly made in two (2) Newspapers, as required under the procedure, on January 2nd, 2014 and, (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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therefore, limitation period of filing of Appeal had commenced much earlier, which cannot be extended for any trivial reason. It is further submitted that when the Appellant Nos.1,2 and 4, participated in the public hearing, they cannot be allowed to say that they had no knowledge about ongoing process of public consultation and other steps of process, which could end in grant of EC and, therefore, they could have vigilantly pursued the matter to ensure whether EC is granted or refused. He would submit that any vigilant person interested in such kind of project or the result of public consultation, could have followed the proceedings to the logical end in order to see end result thereof. He contends that absence of knowledge is pretended by the Appellants only with a view to bring the Appeal within limitation period, in order to file Appeal and delay the project in question. He would submit that the project is in the interest of public at large, because it deals with hygiene and treatment of effluents generated by the Industrial waste, which is needed so as to reduce excess load on the existing CETP. Secondly, according to
learned Advocate
for the
Respondent No.6, the Textile Units situated at border of Narol, Ahmedabad, may start discharging effluents in
(J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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river ‘Sabarmati’, which is likely to pollute the water if excessive effluents are not properly treated by making due arrangements of CETP. 6.
Perusal of the documents would show that
publication of newspaper information was duly made in English and vernacular Newspapers dated January 2nd, 2014, by the Respondent No.6, as required under the provisions of the EIA Notification dated 14th September, 2006. It is well settled that knowledge of Appellants by any three (3) modes like a) going through information from Website of MoEF, or b) from information gathered through Newspaper report or c) the publication made by the public authority, would be triggering point that will start running of limitation. We need not dilate on case Laws in this behalf, because much load of case laws is added on this subject. In case of (1) Save Mon Region Federation Vs Union of India [ALL (1) NGT PB (1)(1)], (2) Nikunj Developers Vs State of Maharashtra [2013 All (I) NGT (1) PB 40), (3) Medha Patkar Vs MoEF, [Appeal No.1/2013, decided on 11th July, 2013], (4) Kehar Singh Vs State of Haryana [Application No.124 of 2013, decided on 12.9.2013,] (4) etc.
We
do not wish to repeat the observations made in the above (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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authorities/decisions, on the subject for want of repetition. 7.
Coming to the pointed question, it may be stated
that first point of knowledge gathered by the Appellants will be the point wherefrom limitation will start running. It need not be reiterated that once limitation starts running, it is unstoppable, till it goes up to the last point of outer cap. Obviously, it is necessary to locate as to when the first date of knowledge gathered by the Appellants can be precisely attributed to them inspite of the fact that the circumstances show that they may have reason to gather knowledge much earlier than issuance of impugned EC. First, it is important to note that the Appellants did not refer to filing of the Writ Petition in their Main Appeal and outcome of the said Writ Petition or, knowledge gathered from their Advocate during pendency of the said Writ Petition. This is significant, because the Appellant No.4, was one of the Writ Petitioner and could have gathered knowledge of the EC, as the documents were filed by the Respondent No.6, through his Advocate, during course of first hearing of the Writ Petition on 22nd May, 2014. Obviously, at least on 22nd May, 2014, the Appellant No.4, could have (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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attributed due knowledge of impugned EC which he could have shared with other Appellants. It is nobody’s case that the Appellant No.4 and other Appellants were at logger heads and were not with taking terms with each other. In fact, they were acting in unison with each other. As stated earlier, the Appellant Nos.1,2 and 4, had together represented the cause during course of public consultation of the project. Under the circumstances, even a naïve person cannot believe that the Appellant No.4, might not have informed other Appellants about the EC granted as on 22nd May, 2014. In the affidavit filed in rejoinder, certain patch work is done by the Appellants to show that the documents were given by the learned Advocate appearing for them on subsequent date of hearing i.e. on 12th June, 2014, and not on the first date. Because the Appellants were not present at that time. Assuming that this is true position, the statement cannot be accepted to have corroboration for want of affidavit of learned Advocate appearing for them in the Hon’ble High Court and without record of Hon’ble High Court, in support of such a statement. No doubt, parties are not required to appear in person during course of hearing in ordinary course, but as duty bound,
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normally the Advocates do not shirk in their duty to inform the parties about progress in the matter at an earlier date and, particularly, when the matter is disposed of for the reasons like present one, as indicated in the order passed by the Hon’ble High Court of Gujarat, due to production of impugned EC in the proceedings of Writ Petition No.177 of 2014. 8.
Learned
Advocate
Shweta
Busar,
makes
a
statement that on 23rd May, 2014, EC was uploaded on the website of MoEF, as per instructions received by her, and has put the copy of email, received from MoEF, on record. Though there is no document on record and nothing is stated in the reply affidavit of GPCB, regarding compliances of condition Nos. 8and 10, of EC on the foot thereof, yet, learned Advocate Viral Shah, under instructions of the Law Officer, to whom he contacted telephonically, states that somewhere in first week of March, 2014, communication was forwarded to the public authorities for putting up the same in public domain in their offices, so as to comply with condition Nos. 8 and 10 of the EC. 9.
The
EIA
notification
2006,
Regulation
10,
describes the information dissemination by putting the (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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EC in public domain through different modes by the stake holders. The Hon’ble Principal Bench of National Green Tribunal, in its judgment in Appeal No.1/2013 [Medha Patkar Vs
MoEF,] has already dealt on this
aspect and relevant paras are reproduced below : – ‘’12.
From the above dictum, it is clear that a
communication would mean putting it in public domain and completing the acts as are contemplated in the EIA Notification of 2006, read with conditions of the EC and the provisions of the Act. In terms of the scheme of the notification and law, there are three stakeholders in the process of grant of environmental clearance: (a) Project Proponent (b) Ministry of Environment and Forests, and (c) Other agencies which are required to fulfill their obligations to make the communication complete in terms of the provisions of the Act and the notification concerned.
13.
The MoEF shall discharge its onus and complete
its acts to ensure communication of the environmental clearance so as to trigger the period of limitation. The MoEF upon granting of the environmental clearance must upload the same on its website within seven days of such order, which would remain uploaded for at least 90 days, as well as put it on its notice board of the Principal as well as the Regional Office for a period of at least 30 days. It should be accessible to the public at large without impediments (Refer Save Mon Region Federation & Anr V. UOI & Ors.) 14
The project proponent, upon receipt of the
environmental clearance, should upload it permanently on (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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its website. In addition thereto, the project proponent should publish it in two local newspapers having circulation where the project is located and one of which being in vernacular language. In such publication, the project proponent should refer to the factum of environmental clearance along with the stipulated conditions and safeguards. The project proponent then also has to submit a copy of the EC to the heads of the local authorities, panchyats and local bodies of the district. It will also give to the departments of the State a copy of the environmental clearance. 15
Then the Government agencies and local
bodies are expected to display the order of environmental clearance for a period of 30 days on its website or publish on notice board, as the case may be. This is the function allocated to the Government departments and the local bodies under the provisions of the notification of 2006. Complete performance of its obligations imposed on it by the order of environmental clearance would constitute a communication to an aggrieved person under the Act. In other words, if one set of the above events is completed by any of the stakeholders, the limitation period shall trigger.
If they happen on different times and after
interval, the one earliest in point of time shall reckon the period of limitation. Communication shall be complete in law upon fulfilment of complete set of obligations by any of the stakeholders.
Once the period of limitation is
prescribed under the provisions of the Act, then it has to be enforced with all its rigour.
Commencement of
limitation and its reckoning cannot be frustrated by communication to any one of the stakeholders. Such an approach would be opposed to the basic principle of limitation.”
(J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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10. It will be also worthwhile to read the related condition of the EC concurrently at this stage: (xiv) A copy of clearance letter will be marked to concerned panchyat/local NGO, if any, from whom suggestion/representation has been received while processing the proposal. (xv)
State Pollution Control Board shall display a copy of the clearance letter at the Regional Office, District Industry Centre and Collector’s office/Tahsildar’s office for 30 days.
(xvi) The project authorities shall advertise at least in two local newspapers widely circulated, one of which shall be in the vernacular language of the locality concerned within 7 days of the issue of the clearance letter informing that the project has been accorded environmental clearance and a copy of the clearance letter is available with the State Pollution Control Board and also at web site of the Ministry of Environment and Forests at http://envfor.nic.in and a copy of the same shall be forwarded to the Regional office of the Ministry located in Bangalore.”
11.
It is evident from the joint reading of above para
17 and 18 that though MoEF is expected to host the EC on its website and display the same on Notice Board, and this is also directly linked to the specific condition that the
Project
Proponent
shall
publish
newspaper
advertisement specifying the EC conditions and also, mentioning that complete EC is available on MoEF website. This particular provision has a specific intent of ensuring wide publicity of the EC and conditions stipulated therein, as a part of legislative intent and therefore, it can be observed that both these modes of (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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putting it on MoEF’s website, the project proponent’s newspaper advertisement are linked to each other and need to be read together.
The other mode of Notice
Board display by various authorities is also equally important, besides sending copies to the people/parties who have raised objection in appraisal process. As these authorities and number of people/parties are plural in numbers, it may not be practicably feasible to verify the compliance by MoEF and will delay the process, and therefore, we are of the considered opinion that the confirmation about sending the copies of the EC to these public authorities through speed post/registered post can be sufficient to assume the completeness of this communication mode.
These public authorities have
been given the responsibility of putting the copies of the EC on their Notice Board, which they are expected to perform with utmost responsibility. However, mere noncompliance on this ground of communication by one or other public authorities cannot be the basis of incomplete communication. 12.
All said and done, it is clear that the Appellants
first came to know about the impugned EC during course of hearing of the Writ Petition No.177 of 2014 by (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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the Advocate of Respondent No.6, on 22nd May, 2014. It may be gathered that being a party to the said Writ Petition, the Appellant No.4, could have knowledge of the said EC on 22nd May, 2014 and, therefore, limitation triggered on that date for all the Appellants, who got knowledge of the EC, being together in the instant action that being the first triggering point, the Appeal ought to have been filed within thirty (30) days from 22nd May, 2014. The period of thirty (30) days elapsed on 21st June, 2014. Thereafter, no doubt, grace period started
as
provided under Section 16 of the NGT Act, 2010, the Appeal, no doubt, could be filed by availing further sixty (60) days period, if the Appellant(s), would come within domain of proviso appended to Section 16 of the NGT Act, 2010. The instant Application, however, does not show any kind of ‘sufficient cause’ to explain delay, which occurred after thirty (30) days from first day of knowledge. Grace period of further sixty (60) days can be availed only under the proviso and not otherwise. The proviso comes into play only when ‘sufficient cause’ is shown by the Appellant(s), whereby explanation is given to satisfaction of the Tribunal, regarding delay caused for further period after thirty (30) days. The proviso
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appended below Section 16, is clear. The proviso reads as follows: “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 of not exceeding sixty days.“ 13.
In our opinion, once the limitation triggers from
22nd May, 2014, it could not be arrested and after period of thirty (30) days, the Appellants could not seek extension, as a matter of right, unless proviso is attracted by showing any explanation to indicate existence of ‘sufficient cause’ for the delay. That apart, even assuming that first point of knowledge to the Appellants triggered from date of order passed by the Hon’ble High Court of Gujarat on 22nd May, 2014, then also period of thirty (30) days, is over as on 21st June, 2014, and, hence, the Appeal is barred by limitation. 14.
Third, even assuming that limitation starts when
the EC was put on Website on 23rd May, 2014, then also period of limitation of thirty (30) days is over on 22nd June, 2014 and period of ninety (90) days is over on 21st (J) M.A. No.147/14 in Appeal No. 27 /14 (WZ)
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August, 2014. As stated earlier, even in Category (3) stated above, there is no reason to apply the proviso appended to Section 16 of the NGT Act, 2010. Needless to say, we find it difficult to entertain the Application for delay
condonation.
The
Application
is,
therefore,
dismissed. Consequently, the Appeal stands disposed of. No costs.
..……………………………………………, JM
(Justice V. R. Kingaonkar)
….…………………………………………, EM
(Dr.Ajay A. Deshpande)
Date: March 20th, 2015.
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