Common Judgment
1. By this common Judgment, all the above matters, are being disposed of together, inasmuch as identical question is required to be determined in both the Appeals and the Misc. Applications.
2. For the sake of convenience, the Appeal No.7 of 2013, will be treated as leading matter and the relevant averments and documents filed therein, will be referred for the purpose of discussion.
3. Original Appellants in Appeal No.7 of 2013, Dr.(Sau) Nandini Sushrut Babhulkar and Ors, have preferred Appeal against the Environment Clearance (EC) certificate dated March 28th, 2012, granted by the Respondent No.3 -SEIAA, i.e. competent authority of the Environment Ministry of the State of Maharashtra, in favour of Respondent No.4 M/s AVH Chemicals P Ltd. (For short, hereinafter referred to as "Chemical Industry").
4. The same the Environment Clearance (EC) certificate dated March 28th, 2012, is the subject matter of challenge in Appeal No.2 of 2014, filed by the Appellant - Narsing Patil. Needless to say, both the matters are clubbed together, in order to avoid over lapping consideration of the same issues.
5. Miscellaneous Application No.46 of 2013, is filed in Appeal No.7 of 2013, by the Appellants for condonation of delay of five (5) days. It is stated that there is delay of only five (5) days in filing of the Appeal, which occurred due to time consumed in collecting of various documents, travelling to Pune, engaging of a Counsel and preparing the Appeal, along with voluminous record.
6. The Chemical Industry, has filed M.A.No.9/2014, seeking framing of preliminary issue in respect of bar of limitation, prior to proceeding with hearing of the appeals and deciding of the same. On behalf of the Chemical Industry, it is submitted that the Appeal is hopelessly barred by limitation and therefore, it should not be taken up for hearing.
7. We have heard learned Counsel, appearing for contesting parties. We have gone through the relevant record. It is important to note that in both the Appeals, a categorical statement is made that the Appellants had preferred Writ Petition (PIL) No.184 of 2013 in the Hon'ble High Court of Bombay, raising identical issues and challenging the Environment Clearance (EC) certificate dated March 28th, 2012, issued in favour of the Chemical Industry by the State Environment Ministry (SEIAA). They allege that by Judgment dated 11.10.2013, they were directed by the Hon'ble High Court of Bombay, to withdraw that Writ Petition with liberty to file proceedings on the same cause of action in this Tribunal. This Tribunal has jurisdiction to decide on merits substantial issue relating to environment. They claim, therefore, that in pursuance of such Judgment/Order of the Hon'ble High Court of Bombay they 5
(J) M.A. No.46/2013, MA No.9/2014, In Appeal No.7/2013 with Appeal No.2/2014 have withdrawn earlier Writ Petition (PIL) No.184 of 2013 and have preferred the Appeal.
8. According to the Appellants, limitation period has to be computed from 11.10.2013, when they were directed to withdraw the Writ Petition (PIL) No.184 of 2013, with liberty to file the Proceedings in the NGT. The case of Appellants Dr.(Sau) Nandini Sushrut Babhulkar and others, is that on the date of filing of the Appeal, which was filed on 19.11.2013, there was delay of only six (6) days, if the period is counted from the date of withdrawal of Writ Petition (PIL) No.184 of 2013. They would submit that the Appeal is filed six (6) days after the initial period of thirty (30) days, but falls within period of sixty (60)days as permissible under the proviso appended to Section 16 of the NGT Act, 2010, and as such, the delay of six (6) days can be condoned, when the same is satisfactorily explained. They submit that delay is marginal, duly explained and condonable under the circumstances.
9. In case of Appeal No.2 of 2014, the Appellant Narsing Patil, states that there is no delay caused in filing of the Appeal. It is stated in the Appeal Memo that the Appeal is filed within limitation, inasmuch as the appellant Narsing Patil, got knowledge about withdrawal of Writ Petition (PIL) No.184 of 2013 at later date and therefore, the Appeal is preferred after such knowledge was received.
10. The questions which emerge for consideration are as follows:
1. Whether there is only delay of six (6) days, as contended by Appellants Dr. (Sau) Nandini Sushrut Babhulkar and others and it is liable to be condoned.
2. Whether the Appeals are barred by limitation under Section 16 of the NGT Act, 2010.
11. Before we proceed to deal with the above questions on merits, it would be appropriate to consider import of the order dated October 11th, 2013, passed by the Hon'ble High Court of Bombay. The copy of said order (P-104) annexed with the Appeal No.7 of 2013, reveals that withdrawal of Writ Petition was allowed with liberty to file proceedings on the "same cause of action" before the NGT. The order itself may be reproduced for the purpose of clarity:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO.184 OF 2013
Dr, (Sau) Nandini Shushrut Babhulkar £ Ors. .. Petitioners vs. Maharashtra Industrial Development Corporation and Ors. .. Respondents Mr. A. S. Desai for Petitioners, Mr. Samir Patil - AGP for Respondent - State, Mr. D. D. Madon - Senior Advocate i/b. Bharucha and Partners for Respondent No. 4. Mr. Y. R. Mishra with N. R. Prajapati for. Respondent No. 6. AM : DR. D.Y. CHANDRACHUD. AND M.S. SONAK, JJ.
11 October 2013
In view of the judgment of the Supreme Court in Bhopal Gas Peedith Mahila Sangathan and Ors. vs. Union of India and Ors. we allow the Petitioners' Counsel to withdraw the petition with liberty to file proceedings on the same cause of action before the National Green Tribunal. The petition is accordingly disposed of.
(Dr. D. Y. Chandrachud, J.)
(M. S. Sonak, J.)
A plain reading of above order, goes to show that Hon'ble Bench did not by itself direct the Appellants to withdraw the Writ Petition (PIL) No.184 of 2013. There is no affidavit of concerned Counsel that the Hon'ble Bench directed him to withdraw the Writ Petition and as such, it was withdrawn. What appears from the order is that withdrawal of the Writ Petition was allowed with liberty to file proceedings in the NGT, 'on the same cause of action'. In any case, the Writ Petition itself was not transferred by the Hon'ble High Court of Bombay for determination of the issues raised therein. Had it been transfer order passed by the Hon'ble High Court of Bombay, then all the issues raised in the Writ Petition, could be deemed as open for consideration.
12. In such a case, there could perhaps be leverage available to this Tribunal to go into the merits of the matter, particularly in respect of the issues raised in the Application.
13. As stated before, the order of the Hon'ble High Court categorically states that the withdrawal of Writ Petition, was permitted with liberty to file the proceedings in this Tribunal on the "same cause of action." This conditional permission for withdrawal has significance and utmost bearing on the question of limitation raised as a preliminary objection, on behalf of the contesting Respondents as well as in regard to condonation of the delay sought by the Applicants - Dr. (Sau.) Nandini Sushrut Babhulkar and others. The very fact that the Writ Petition (PIL) No.184 of 2013 was filed in the Hon'ble High Court of Bombay, based upon the very same cause of action, challenging the Environment Clearance (EC) Certificate dated March 28th, 2012, reveals that the Appeal period was over as on October 11th, 2013, when the Writ Petition was withdrawn by the Applicants. The averments in paragraph 11, where under objections raised by the Applicants are set out, go show that in October, 2012, the brother of Applicant No.3, namely Sh. Ramesh Patil, who is working at London, informed him about information gathered from Internet that the Respondent No.4, is going to set up Coal Powered Distillery plant at MIDC Halkarni. It was thereafter that Applicant No.3, Ramesh, gave information to other Applicants and a meeting was convened on 11.11.2012. The villagers formed 'Janhit Andolan Samiti' to oppose setting of the Coal Powered Distillery plant by the Respondent No.4, (Chemical Industry) in MIDC area. Applicant No.3, Ramesh and other people of the village visited the project site on 16.12.2013, to collect further information. It is also stated that they came to know that the Coal Powered Distillery plant is hazardous and obnoxious to environment and therefore it was necessary to oppose the plant by issuing circulars, pamphlets etc. The Applicants gathered knowledge about the impugned Environment Clearance Certificate, granted to the Chemical Industry, in view of aforesaid facts, after collecting necessary information and it was more than clear that they did not file Appeal against such Environment Clearance (EC) Certificate within prescribed period of limitation, as provided under Section 16 of the National Green Tribunal Act, 2010. According to the Appellants, the E.C. was granted in violation of the Environment (Protection) Act, 1986, and illegality has continued 'cause of action' also has continued. They further submit that after coming to know about the EC, they immediately started agitation and therefore the Respondent No.3, granted stay to commissioning of the project vide an order passed by the Respondent No.3, which is the subject matter of challenge in the Writ Petition filed by the Respondent No.4, (Project Proponent) and also that the Environment Clearance Certificate granted by the Respondent No.3, - SEIAA, is without jurisdiction and as such the Appeal is within limitation.
14. The settled legal position is that once limitation has started running then it cannot be halted in the midst. The Appellants were required to challenge the Environment Clearance Certificate, dated March 28th, 2012, within period of thirty (30) days, as contemplated under Section 16( ) of the NGT Act,2010. Assuming that for some tangible reason, there was delay on the part of the Appellants to file the Appeal, yet the delay could not be condoned beyond period of sixty (60) days. The commencement of period of limitation has to be computed from the date of 'communication' of impugned Environment Clearance Certificate. The expression 'communication' includes placement of such Environment Clearance Certificate on the website of Environment Ministry of the State or publication thereof in the newspaper at the behest of the Project Proponent. As demonstrated earlier, the Appellants have stated that the information was received by them from the relative of the Appellant No.3 that the Environment Clearance Certificate was granted to the Chemical Industry, as per the Internet information and news. They had also visited the site of the project. They had also challenged the Environment Clearance Certificate by filing the Writ Petition before the Hon'ble High Court. Not only that but on their own showing they took up the issue by starting agitations and therefore, the Respondent No.3, (Environment ministry) granted suspension to the project activities, which apparently is the subject matter of challenge in Writ Petition filed by the Project Proponent (Respondent No.4). These are events much prior to October, 2013 and therefore, it will have to be said that there was communication of the Environment Clearance Certificate dated March 28th, 2012, granted in favour of the Chemical Industry i.e. Respondent No.4, to the Appellants, much earlier than October, 2013. It is pertinent to note that in the present case, the expression 'communication' will not be necessarily restricted to mean communication by way of full-fledged publication of the Notices in the newspapers, as published by the Project Proponent, or that putting the said Environment Clearance Certificate in public domain by the Competent Authority. As a matter of fact, the averments in the Application, go to show that it was put in the public domain by the Respondent No.3, and therefore, was available for perusal of the Appellants, which gave them cause for protest and to make demand for withholding of the EC granted to the Chemical Industry (Respondent No.4). The Competent Authority thereafter granted Suspension/Status Quo. The Respondent No.4, filed the Writ Petition against such order of the Competent Authority. The Appellants too filed writ Petition (IL) No.184 of 2013.
15. The consequence of events indicated above, leave no manner of doubt, that the Appellants can be imputed with due knowledge of the Environment Clearance Certificate much prior to October, 2013. The averments in the Application, would make it manifestly clear that on 17th December, 2013, the Appellants had filed Application under RTI Act, in order to obtain information regarding the setting up of the industrial plant. The relevant averments made by the Appellants in paragraph 11 (h) may be reproduced for ready reference:
"11. Objections raised by the Appellants:
(h) the Applicant made Application under RTI to get the information and various orders issued by the Respondent Nos. 2 and 3 on 17.12.2012."
16. They have further alleged in paragraph (i) as below: "11. Objections raised by the Appellants:
(i) On 28.12.2012 there was a gathering organized by Applicant No.3 of residents of Chandgad Taluka at Patne Phata which was
also attended by is Lordship Justice (retired) Shri. B.G.Kolse Patil and other political leaders and workers of all political parties and there were about more than 20000 attended by said gathering and in the said meeting it was decided to take strong action to oppose setting up Coal Tar Distillation Plant by the Respondent No.4."
17. It can be gathered without difficulty, from the averments shown above that the Appellants received information regarding the Environment Clearance Certificate at least before the end of December 2012. The very fact that one of the retired High Court Judge, namely Sh. B.G.Kolse-Patil, was amongst leading members who attended gathering of 20,000 people, is indication of the fact that there was knowledge of Environment Clearance Certificate in question granted by the Respondent No.3, in favour of the Respondent No.4.
18. It does not stand to reason that inspite of Application presented by the Appellants under the RTI Act, they did not receive any copy of Environment Clearance Certificate dated 28th March, 2012, within reasonable period, nor is it their case that they did not receive copy of the said EC within a reasonable period. A bare perusal of the Environment Clearance Certificate, reveals that the Applicants could be imputed with knowledge that they were required to file Appeal within period of thirty (30) days in the NGT, if they wanted to challenge the Environment Clearance Certificate. This categorical information is stated at the end of the certificate itself, as shown at serial No.9. i.e. Clause-9, of the Environment Clearance letter dated 28th March, 2012, which reads as below: "Any Appeal against this EC shall lie with NGT, Van- Vigyan Bhawan, Sec-v, R.K.Puram, New Delhi-1100 22, if preferred within thirty (30) days, as prescribed under Section 16 of the NGT Act, 2010 ".
Obviously, when copy of this Environment Clearance Certificate was obtained by the Appellants in exercise of the right under the RTI Act, somewhere at the end of January, 2013, the Appeal ought to have been preferred by the end of January, 2013. Admittedly, It was not so done. This Appeal is filed on 19th November, 2013, which is clearly barred by limitation, even if maximum stretching of limitation period is permitted in favour of the Appellants.
19. On behalf of the Appellants, learned Counsel Mr. Sangramsingh R.Bhonsale, contended that the Environment Clearance Certificate dated 28th March, 2012, itself is null, void and must be overlooked because of the fact that it is outcome of fraud, inasmuch as instead of appraisal of the project under category 5(c) of the Schedule appended to the EIA Notification dated 14th September, 1986, it has been purposefully and erroneously appraised under category 5(f). It is argued that the project ought to have been assessed for clearance of the MoEF and not for clearance by SEIAA. In our opinion, this is a disputed question. For consideration of the Appeal, the question whether impugned Environment Clearance Certificate is granted by the Competent Authority, or that the Authority itself is incompetent, is required to be gone into if the Appeal has to be considered on merits. However, if the Appeal itself is barred by limitation, then such a question cannot be considered by this Tribunal, otherwise there will be hardly any relevance to the preliminary objection pertaining to the question of limitation and provision made in respect of special 14
(J) M.A. No.46/2013, MA No.9/2014, In Appeal No.7/2013 with Appeal No.2/2014 limitation under Section 16 of the NGT Act, 2010, may become otiose. Under these circumstances, we do not think it proper to consider the contention of learned Counsel for the Appellants by examining merits of the issues involved in the Appeal.
20. At this juncture, we may point out that the learned Counsel for the Respondent No.4, also invited our attention to certain observations of the Hon'ble Principal Bench in Application No.1373 of 2013 (MA No.686 of 2013 and MA No.96). The MoEF filed affidavit of Aditya Naryan Singh, Deputy Director in that matter, which shows that category of "Coal Tar manufacturing industry" does not fall under any project or activity of the Schedule appended to the EIA Notification 2006. It also appears from order dated January 10th,2014, passed by the Co-ordinate Bench of this Tribunal at Principal Bench, New Delhi, that on basis of such affidavit, it is observed that under Sub-clause 5(f) of the Schedule appended to MoEF Notification dated 14th September 2006, only "Synthetic organic chemicals industry (dyes and dye intermediates; bulk drugs and intermediates excluding drug formulations; synthetic rubbers; basic organic chemicals, other synthetic organic chemicals and chemical intermediates" is covered. We do not wish to express any opinion in this behalf. We have pointed out the contentions of both sides, in order to highlight the issue and show that such issue is debatable and rather a disputed question. So, it cannot be perse said that the Environment Clearance Certificate dated March 28th, 2012, is outcome of fraud and as such stands vitiated for all the purposes. Resultantly, the Appeal cannot be entertained without considering the question of limitation for so called reason that the Environment Clearance Certificate dated March 28th, 2012, itself is non-est in the eye of Law.
21. The chronology of the events go to show that after the agitations, the Respondent No.3 directed that the Environment Clearance Certificate shall be kept in abeyance. Thereafter, the Respondent No.4, (Chemical Industry) preferred Writ Petition No.7098 of 2013, in the Hon'ble High Court of Bombay. By its order dated August 6th, 2013, the Hon'ble High Court of Bombay granted interim relief in favour of the Respondent No.4, (M/s AHV Chemicals P. Ltd). Obviously, the order of Respondent No.3, to keep the Environment Clearance Certificate in abeyance was stayed and as such, there was no legal impediment for the Respondent No.4, to go ahead with the project activity. The affidavit is filed by Shri. J.S. Thakur, Scientist-II, of the Environment department, shows that in a meeting dated 23/24 December, 2013, both the parties were heard and after hearing them, it was decided that since the issue was subjudiced before the Hon'ble High Court in Writ Petition No.7098 of 2013, further action should not be taken till outcome of the Writ Petition No.7098 of 2013, pending before the Hon'ble High Court of Bombay, is decided and also till the present Appeal is decided by this Tribunal.
22. There is no dispute about the fact that the Appellants filed Intervention Application in the Writ Petition No.7098 of 2013, which is pending before the Hon'ble High Court of Bombay. Admittedly, their Intervention Application is allowed. The very same issue is being agitated by them befor the Hon'ble High Court.
23. Relying upon certain observations, in case of Municipal Corporatonl, Indore, vs Niyamatullah (dead) by his L.Rs, AIR 1971, SC 97, it is contended that the plea of limitation under the special statute, may not be considered when an action is without jurisdiction. In given case, a Govt. servant was dismissed by Incompetent Authority. The dismissal could be ordered only by the Competent Authority. Therefore, it was held that "action did not fall within mischief of Section 135(2) of Indore Municipal Council Act, and it was governed by Article 120 of the Limitation Act". As stated before, we cannot presuppose that the Environment Clearance Certificate dated March 28th, 2012, is by itself issued by an Authority, having no jurisdiction to do so and is issued without jurisdiction available to SEIAA. The competency of the Authority is the subject matter of the dispute, which is not yet determined on merits.
24. It need not be reiterated that the Writ Petition No. 7098 of 2013, is pending before the Hon'ble High Court of Bombay. The Appellants have the legal forum available to ventilate their grievance before the Hon'ble High Court of Bombay. So far as the question of limitation is concerned, we are not satisfied with the contention of the Appellants that the Appeal is filed within period of limitation, because the Environment Clearance Certificate, is issued by Incompetent Authority. In Rauf Ahmed Vs State of Chhattisgarh and others (Appeal No.1 of 2003), a Coordinate Bench of this Tribunal (Central Zone Bench, Bhopal) held that "the period of limitation cannot be extended by the Tribunal, in view of the language used in Section 16 of the NGT Act, 2010." The Hon'ble Bench of Central Zone, further observed that the order of transfer of Writ Petition in view of Bhopal Gas Peedith Mahila Sangathan and Ors. vs. Union of India and Ors. NGT by itself would not cover up the issue of limitation, inasmuch as such issue had been kept open for decision of the Tribunal. In present case too, withdrawal of the Writ Petition was permitted by the Hon'ble High Court of Bombay with liberty to approach this Tribunal on the 'same cause of action' which would indicate that whatever cause of action had triggered at the time of filing of the said Writ Petition, was the same and was the starting point for the purpose of limitation in respect of present Appeal or any other remedy which the Appellants could have availed of. Considering this aspect of the matter, we find that the Appeal is filed beyond period of limitation, as envisaged under Section 16 of the NGT Act, 2010. Learned Counsel for the Respondent No.4, has referred to observations in Ms. Medha Patkar Vs MoEF and Ors in the Judgment of Hon'ble Principal Bench, passed in Appeal No. 1 of 2013. The Hon'ble Principal Bench elaborately considered the issue of limitation by referring to the expression "communicaton" and the other expressions in the context of cause of action. Similar issue is considered in 1. Janhit Seva Samitiand Anr. V. Union of India and Ors. [Misc Application No.59 of 2011].
2. Consumer Federation Tamil Nadu v. Union of India [Appeal No.33 of 2011 (PB.NGT)]
3. State Level Environment Impact Assessment Agency v. Tamil Nadu and Ors [Appeal No.5 of 2012 (PB, NGT)]
4. Grampanchayat Tiroda and Anr V. MoEF and Ors [Appeal No. 2 of 2013 (WZ)]
5. Aradhana Bhargav and Ors. V. MoEF and Ors [Application No.11 of 2013 (P.B 46/2013 THC)]
25. It is not necessary to elaborate the discussion on the ratio laid down in each of the above referred Judgments. Suffice to say that the period of limitation is circumscribed by the specific provision of the special enactment, namely, the National Green Tribunal Act, 2010. Obviously, this Tribunal has no discretion to extend the period by taking aid from the general provisions of the Limitation Act. The negative expression used in the language of Section 16 of NGT Act, creates embargo on flexibility in the context of the limitation available for filing of the Appeal. Having regard to legal position enumerated hereinabove, we have no hesitation in holding that the Appeal is barred by limitation.
26. For the reasons discussed in the foregoing paragraphs, we are inclined to allow the Misc Application No.46/2013, and hold that the Appeals are barred by limitation. Consequently, MA No.46/2013, is allowed. The Appeals are dismissed, as being barred by limitation. However, it is made clear that we have not considered any issue raised in the Appeal on merits. We are of the opinion that the Appellants have raised certain important issues, which need consideration and have already been allowed to intervene in the Writ Petition No.7098 of 2013, and they are at liberty to agitate the said issues. The Misc. Application No. 46 of 2013, and both the Appeals are accordingly disposed of. No costs.