Gabhabhai Devabhai Chauhan And Ors vs Union Of India And Ors

This Miscellaneous Application has been filed by the appellant on 8th May, 2018 with the prayer to permit filing of the Appeal and condone the delay of 59 days, in the event the limitation is to be reckoned from the date of order, and/or such other order as Tribunal may deem fit.

Briefly stated, the relevant facts are that Appeal (62/2018) was filed by the appellant Gabhabhai Devabhai and Ors. on 24th April, 2018, inter-alia under Section 16 of the National Green Tribunal Act, 2010. The said Appeal was filed against the letter dated 25th January, 2018 issued by Ministry of Environment and Forest and Climate Change (MoEF&CC), Government of India, whereby environment clearance had been granted to M/s UltraTech Cement Ltd. for limestone mining at villages Kalsar, Dayal and Kotda Taluka Mahuva, District Bhavnagar, State of Gujarat.

It is the case of the applicant that although the environment clearance letter/order is dated 25th January, 2018, the communication, which is necessary for the limitation to begin, is in fact not complete till date. Further the applicant has, in this reference, submitted in para 7 of the Appeal as under:

"That none of the aforesaid requirements which would constitute communication within the meaning of Section 16 of the NGT Act for the limitation to begin to run has been fulfilled by the MoEF&CC, the project proponent or the other authorities.

(a) Although as per the aforesaid judgment, the complete environment clearance has to be published in the newspaper, in the present case a small advertisement only providing the information as to the grant of environment clearance was published in one Avadh Times and Saurashtra Samachar on 31st of January, 2018. The same clearly does not meet the requirement as stated by this Hon'ble Tribunal in judgment of Save Mon Region Federation (Supra). True copy of the Advertisment in the Newspaper dated 31.01.2018 is annexed herewith and marked as Annexure A7 (pg. 379 & 380 of compilation II)

(b) Since, the appellants are illiterate villagers and are not so well conversant with the internet, tried to find out about the environment clearance, with the help of some educated persons in the vicinity those who are computer literate, and tried to get a copy of environment clearance from the website of the project proponent, but could not find the same on their website. The same is not available as on the date of filing of the present appeal.

(c) That on behalf of appellant the search was also made for the copy of environment clearance on the website of the MoEF&CC but the same became available only on 10th April, 2018. Prior to this although the details regarding grant of environment clearance were available on the website of MoEF&CC but the copy of the same was not uploaded. True copy of the screen shot of the website of MoEF&CC showing the status as on 2nd of April, 2018 and 10th of April, 2018 would show that the copy of environment clearance was uploaded only in the month of April, 2018 is annexed herewith and marked as Annexure A8 (pg. 381 & 382 of compilationII).

On the aforesaid premise it is submitted by the applicant that the present Appeal is well within limitation. It is also stated that, as per aforesaid Appeal, the project proponent had taken no steps as contemplated in law to communicate the order of environment clearance as per the Judgment in Save Mon Region Federation Vs. Union of India & Ors. {2013 (1) All India NGT Reporter1}. It is also stated that MoEF&CC had failed to fulfil its obligation of communicating the order of environment clearance, as per Save Mon Region Federation (Supra). The order was put up on their website only on 10th April, 2018.

It has been stated in the application that "Although, as per the judgment unless one set of obligation is complete, the limitation does not begin to run, assuming 10th April, 2018 to be the date of communication and thus the date on which the limitation begin to run, the Appeal has been filed on 24th April, 2018 i.e.

"14th day excluding the date of uploading/ availability/downloadable and the Appeal is well within limitation."

It is also stated that as regards compliance on behalf of the local authorities, Gujarat Pollution Control Board has not put up the copy of environment clearance on their website or notice board and the same is the state of affairs as regards the Gram Panchayat.

"Therefore, if the limitation has to be seen from the view as held by the Tribunal in the Judgment of Save Mon Region Federation (Supra), the Appeal is well within limitation."

Besides, it is stated by the applicant that "Without prejudice to the above contention, if the limitation is to be seen from the date of order, the Appeal has been filed on 89th day from the date of order and on 59th day from the date on which the 30 days period prescribed, expired."

It has been specifically stated by the applicant that as soon as on 10th April, 2018 the applicant could get the copy of the environment clearance, they immediately approached the lawyer in Ahmedabad seeking advice to challenge it. Lawyer has put them in touch with a lawyer at Pune, since the territorial jurisdiction of the State of Gujarat is with Western Zone Bench. The applicant were told that due to paucity of the number of Judicial and Expert Members and also in view of the orders passed by the Hon'ble Supreme Court of India, the Western Bench is not holding court and therefore, the appellants would be required to approach the Principal Bench. Therefore, again with the help of the lawyer at Ahmedabad, they were put in touch with the Advocate who filed the present Appeal. After they met the lawyer they were told about the law laid down by the Tribunal in Save Mon Region Federation (Supra) but they still requested the lawyer to file the case at the earliest, to avoid any technical lapses on their part and thus with great haste the Appeal had been preferred which is well within limitation from the date of communications and if the date of order has to be seen, it has been filed with the delay of 59 days.

It is also submitted that in view of the liberty granted by the Tribunal vide order dated 1st May, 2018, to avoid any technical hindrance in maintainability of the aforesaid Appeal, the present application is being filed seeking permission to file aforesaid Appeal/condonation of delay if this Tribunal is of the opinion with the limitation has to be reckoned from the date of order.

The Respondent has submitted that the appeal has been filed beyond the period of 30 days, from the date of communication of the order. The delay beyond the said period is condonable by the Tribunal only on satisfaction that the appellants were prevented by sufficient cause from filing the appeal. Further, it is stated that the appellants have not shown sufficient cause for filing the appeal beyond 30 days, from the date of communication of the order.

It is submitted by the respondent that in the case of Save Mon Region Federation (Supra) it has been held that limitation shall commence from the date of communication of the order. The Environment Clearance was granted on 25th January 2018. The allegation of the appellants that the EC was uploaded on 10th April 2018 has been categorically denied as being false and unsubstantiated. The respondent have submitted that the EC was uploaded on the website of Ministry of Environment, Forest and Climate Change and could be downloaded without any hindrances on 29th January 2018. This fact is said to have been confirmed by the Environment Consultant of the respondent who communicated them about the grant of EC and attached the same vide an email dated 29th January 2018. (Annexure R-3/1). Further, an affidavit of the employee of respondent who had downloaded the EC on 30th January 2018 has been placed on record (Annexure R-3/2).

According to the condition of EC the respondent had on 30th January 2018 requested District Collector, Bhavnagar to display the EC copy in his office for public information for 30 days. The respondent had on 30th January 2018 also submitted the copy of the EC to Gram Panchayat Dayal Village, Gram Panchayat Kalsar Village, Gram Panchayat Nicha Kotda village and Gram Panchayat Uncha Kotda village (Annexure R-3/3) (Colly.) It has also been submitted that appellant no. 1 is the Sarpanch of Gram Panchayat Dayal Village. The list of Sarpanchs in the various Gram Panchayats in Mahua Taluka, Gujarat posted on the website of Government of Gujarat, within the name of appellant no. 1 has been shown (Annexure R-3/4). The said letter was received by Talati Mantri, a Government Official sitting in Panchayat office on the same day (Annexure R-3/5). Respondent had also advertised the Environmental Clearance in two local newspapers i.e. Saurashtra Samachar and Awadh Times, both in vernacular and English languages, on 31th January 2018 (Annexure R-3/6) (Colly).

The present appeal has been filed only on 24th April 2018 and therefore, it has been filed beyond the period of limitation of 30 days and no sufficient cause has been shown by the appellants for condoning the delay. It is also stated that rather than showing sufficient cause the appellant has concealed material facts with respect to communication of the order of grant of EC from the Tribunal and on this ground alone the appeal deserves to be dismissed.

It has also been submitted that the appellants have made a false averment that the copy of EC was uploaded only on 10th April 2018. The Environment Consultant, along with the employee of the respondent were able to download the EC without any hindrance on 29th and 30th January respectively. It is said that the appellants have also made contradictory statement in the appeal and the application for condonation of delay. While on one hand the appeal mentions that order was put up on the website of MoEF & CC only on 10th April, 2018, on the other hand, it is stated in various paragraphs of the application that the communication of the order is not complete till the day the appeal had been filed. On such false averment regarding communication of EC, the appellant has wrongly contended that the limitation does not begin to run. The appellant has not approached the Tribunal with clean hands and therefore the appeal deserves to be dismissed on this ground alone.

The respondents have also submitted that the appellants have been well aware of the mining projects and had actively participated in the public hearing as well as the EC proceedings for environmental clearance. The appellant no. 1 Sarpanch of one of the panchayats was aware of EC being issued as the same was received in Gram Panchayat. The respondent have placed on record the copy of the letter dated 10th June 2016 of the appellant and extract of final EIA report showing appellants opposition. (Annexure A R-3/7) (Colly).

After considering the case of the parties and before adjudicating upon the rival contentions, it would be appropriate to reproduce hereunder relevant provision of law i.e. Section 16 of the National Green Tribunal Act 2010:

Any person aggrieved by:

(a) 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:

(b).......

(c).......

(d).......

(e).......

(f).......

(g)......

(h).......

(i).......

(j)........

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.

Both the parties have in this case relied upon the judgement passed by the Tribunal in case of Save Mon Region Federation & Anr. Vs. Union of India & Ors. i.e., particularly para 19 which reads as follows:

"19. The limitation as prescribed under Section 16 of the NGT Act, shall commence from the date the order is communicated. As already noticed, communication of the order has to be by putting it in the public domain for the benefit of the public at large. The day the MoEF shall put the complete order of Environmental Clearance on its website and when the same can be downloaded without any hindrance or impediments and also put the order on its public notice board, the limitation be reckoned from that date. The limitation may also trigger from the date when the Project Proponent uploads the Environmental Clearance order with its environmental conditions and safeguards upon its website as well as publishes the same in the newspapers as prescribed under Regulation 10 of the Environmental Clearance Regulations, 2006. It is made clear that such obligation of uploading the order on the website by the Project Proponent shall be complete only when it can simultaneously be downloaded without delay and impediments. The limitation could also commence when the Environmental Clearance order is displayed by the local bodies, Panchayats and Municipal Bodies along with the concerned departments of the State Government displaying the same in the manner afore-indicated. Out of the three points, from which the limitation could commence and be computed, the earliest in point of time shall be the relevant date and it will have to be determined with reference to the facts of each case. The applicant must be able to download or know from the public notice the factum of the order as well as its content in regard to environmental conditions and safeguards imposed in the order of Environmental Clearance. Mere knowledge or deemed knowledge of order cannot form the basis for reckoning the period of limitation."

It is relevant to mention here that in case of an appeal being time barred, an application seeking condonation of delay has to be filed along with the appeal. In the present case the appeal had been filed on 27th April, 2018 and later on an application (M.A. 726 of 2018) was filed on 8th May 2016, seeking condonation of delay. Therefore, explanation of sufficient cause with regard to condonation of delay has to be given upto the date of filing the M.A. on 8th May 2016.

It has been submitted by the appellant, in para 21 of M.A., that in view of the liberty granted by the Tribunal vide order dated 01st May, 2018, to avoid any technical hindrance in maintainability of the aforesaid appeal, the present application is being filed seeking permission to file the aforesaid appeal/condonation of delay. A bare look to the order dated 01st May 2018 shows that the Tribunal had taken the view of follows:

"On perusal, we find that if period of 30 days is reckon from the date of the impugned order granting EC, the Appeal filed is beyond the period of 30 days prescribed. When questioned, the Learned Counsel submits that he need not to file any separate application because the order granting EC was not uploaded within 30 days and hence, the Appeal is deemed to be in time. This submission is nothing but explanation of the appellant for having filed the appeal beyond the period of 30 days. Consequently, the Appellant was required to file an application explaining these factors to seek the benefit of condonation up to the period of termination under provision of Section 16 of the National Green Tribunal Act, 2010. Therefore, as of now, we find that the Appeal without any Application seeking condonation of delay, will not be maintainable."

Therefore, the said averment made by the appellant, in the aforesaid para of the M.A. that the Tribunal had granted liberty on 01st May 2018 for filing the application seeking condonation of delay, is not correct. As a matter of fact, the Tribunal had on 01st May 2018 made observation with regard to maintainability of an appeal without seeking condonation of delay in a proper manner.

Furthermore the appellant has submitted in para 11 of the application that although Environment Clearance letter/order was issued on 25th January 2018, but the communication, which is necessary for the limitation to begin, is in fact not complete till date. In other words the appellant has himself taken contrary stands by saying on one hand that the communication necessary to begin is not complete till date and on the other hand he has filed application for condonation of delay.

Coming to the case of Save Mon Region Federation (Supra) it is to be noted that a bare reading of the judgement reveals that there are three authorities which take steps for communicating about the grant of EC, which are as follows:

"1. The day the MoEF shall put complete order of EC on its website and when the same can be downloaded without any hindrance or any impediment.

The limitation may also trigger from the date when the project proponent uploads the EC order with its environmental condition and safeguards upon its website as well as publish in the newspaper as prescribed under regulation 10 of the EC Regulation, 2006.

The limitation could also commence that the when the Environmental Clearance order is displayed by the local bodies, Panchayats and Municipal Bodies along with the concerned departments of the State Government displaying the same in the manner afore-indicated."

Further it is to be noted that in the said judgement it has been clearly laid down that out of the three points as aforesaid, the earliest in point of time shall be the relevant date and delay have to be determined with reference to the facts of the each case. In the instant case EC was granted on 25.01.2018 and the same was uploaded on the website of Ministry of Environment Forests and Climate Change and was downloaded without any hindrance, on 29.01.2018.

The facts with regard to uploading of EC by the Ministry on 25.01.2018 and the same being downloaded on 29.01.2018 is established from the documents on record placed by the respondent. A look to Annexure R-3/1 goes to show that environment consultant of the respondent namely, J.M. Enviro Net Pvt. Ltd. had sent a mail to Pramodran M. with copies to others on 29.01.2018 at 16:07 hrs, with an attachments which was the EC letter dated 25.01.2018 PDF. Further the employee of the respondent namely, Nitya Kishor Dixit has deposed on oath (an affidavit filed as Annexure R03/2) that he had downloaded the EC on 30.01.2018 and informed the concerning employees of ULTRA TEC Cement vide email dated 30.01.2018 and also forwarded a soft copy of EC dated 25.01.2018. Further he has deposed that the login details showing access to MoEF website to download EC dated 25.01.2018 and sending an email, has been filed as annexure B (Page 93), along with the affidavit. Therefore, earliest in point of time communication of the order granting EC and putting it in the public domain was done by MoEF on 29.01.2018 and the same could be downloaded on 30.01.2018. Thus the contention raised by the appellant that EC was uploaded only on 10.04.2018 is incorrect and false and not substantiated by any material on record.

Moreover, the respondent had on 30.01.2018 requested District Collector, Bhawnagar to display the copy of EC for public information for a period of 30 days. Similarly, the respondent had vide letter dated 30.01.2018 also sent copies of the EC to Gram Panchayat Dayal Village, Gram Panchayat Kalsar Village, Gram Panchayat Nicha Kotda village and Gram Panchayat Uncha Kotda village. The copies of the letters have been placed on record by the respondent as Annexure R-3/3 (colly) which had been duly received and copy of the same has been placed on record from Anneure R-3/4 and R-3/5. Apart from it, the respondent had also advertised on 31.01.2018 about grant of EC in two local newspapers, namely, Saurashtra Samachar and Awadh Times. Copies of the publication have been placed on record as annexure R/3/6.

It is pertinent to mention here that in para 12 of the M.A., in Clause A (which is said to be part of para 7 of the appeal) mentions that "in the present case a small advertisement only providing the information as to the grant of EC was published in one Awadh Times and Saurashtra Samachar on 31.01.2018." Both these publications have been placed on record by the applicant as Annexure A-7.

Besides, it may be mentioned here that the appellants had been actively participating in the public hearing during the proceeding of EC. The appellant no. 1 is the Sarpanch of one of the panchayats. He had sent a letter on 10.06.2016 to Gujarat Pollution Control Board (Annexure-3/7) whereby he had expressed his opposition to the final EIA report.

It is also significant to note that it is a settled principle of law, which has also been reiterated in the case of Save Mon Region Federation (Supra) that condonation of delay is not a matter of right. It was held in the case as under

"35. When a petition becomes barred by time right accurse to the other party and such a right cannot be taken away by the court merely on an application which lacks bonafides and does not disclose any sufficient case for condonation of delay".

In the present case, as mentioned above, EC granted on 25.01.2018 was very much uploaded by the Ministry on 29.01.2018 and was also downloaded on 30.01.2018. Therefore we have no hesitation in holding that the grant of EC was in public domain on 30.01.2018, if not on the earlier day. Instant appeal was filed on 24.04.2018 and Miscellaneous Application on 08.05.2018. It is the duty of the appellant to explain each day of delay which prevented him with sufficient cause from filing the appeal within the prescribed period. We have carefully perused the averments made in the application for condonation of delay which neither gives any sufficient cause nor explains the same in respect of each day. On the contrary the appellant has only tried to explain, in general terms, the period that too only from 10.04.2018 onwards. The relevant paras of the application are paras 18, 19 and 20 wherein the appellant has failed to give any sufficient cause which prevented him from filing the appeal with the prescribed period. As a matter of fact the appellant has concealed material facts of EC being uploaded by the Ministry on 29.01.2018, the publication of EC in the newspaper by the respondent and above all, receipt of letters sent on 30.01.2018 to panchayats of which applicant no. 1 is the Sarpanch (R-3/5). It is only an afterthought on the part of appellant to say that they came to know about grant of EC only on 10.04.2018, particularly when the appellants were very much following its proceedings since the time of public hearing and final EIA report.

For the aforesaid reasons the inevitable conclusion is that the appellants have failed to give sufficient cause which prevented them from filing the present appeal within prescribed limitation. Thus there is no just reason to condone the delay. Accordingly M.A. is dismissed, with no order as to cost.

Consequently appeal no. 62 of 2018 is also dismissed as not being maintainable on account of being barred by limitation.