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Judgment
Order dated 15th May, 2012 issued by the Gujarat State Environment Impact Assessment Authority (M.A. 102/2012) (SEIAA) modifying / amending previous Environmental Clearance (EC) dated 11th June, 2010 granted to M/s. OPG Power Gujarat Limited for establishing 300 MW Thermal Power Plant at Bhadreshwar, Taluka Mundra, Dist. Bhuj Kutch, Gujarat and thereby allowing change of technology from water cooled to air cooled system is assailed in Appeal No. 38/2012 on various grounds.
In accordance with the Section 16 of the National Green Tribunal Act, 2010, any person aggrieved by an order granting EC to any project, may within 30 (thirty) days from the date on which the order or decision is communicated to him prefer an Appeal before this Tribunal. Proviso to the said Section further stipulates that the Tribunal may, if it is satisfied that the Appellant/Applicant was prevented by sufficient cause from filing the Appeal within the said period i.e. 30 (thirty) days, allow it to be filed within a further period not exceeding 60 (sixty) days.
In the case in hand, the impugned order amending the EC was passed on 15th May, 2012. The Appeal assailing the said order was presented on 16th July, 2012, thus, the same was filed after laps of 30 days, but then within 90 days. The Appellant/Applicant being conscious of the said facts filed a petition for condonation of delay explaining the reasons which prevented him from filing the Appeal within 30 (thirty) days.
The factual background reveals that number of cases were filed assailing the Environment Clearance, Forest Clearance and CRZ Clearance granted to the Project Proponent with regard to the aforesaid project. Out of the said cases, some have been disposed of and others are still sub-judiced. The present Appellant/Applicant is a party to most of the litigations. He claims to be the Deputy Sarpanch of Bhadreshwar Panchayat.
According to the Appellant/Applicant as multiple litigations are pending before this Tribunal, the Appellant/Applicant was not sure as to whether he was required to file a fresh Appeal, assailing the order dated 15th May, 2012 amending the EC dated 11th June, 2010 and permitting change of technology or not. After consultation with the local people, who are affected by the project, and on being satisfied that the change of technology would cause damage to the environment and ecology, he tried to consult experts in the field and also seek legal assistance from advocates who were handling the cases and were aware about the facts and law.
It is, further, stated that as this Tribunal was closed for summer vacation from 2nd June, 2012 to 30th June, 2012, the Appellant/Applicant was not able to take advice from the counsel who was conducting all the previous litigations. Only after discussing with his counsel and consulting the Senior Advocates, the Appeal was drafted and filed, thus, there was a delay of about 28 (twenty eight) days. On calculation, however, it is found that in fact, the appeal was filed after 61 (sixty one) days and after deducting the permissible 30 (thirty) days, the delay comes to about 31 (thirty one) days.
After receiving notice, a detailed reply has been filed on behalf of Respondent No. 2 emphatically taking the stand that the appeal having been filed beyond the stipulated time and as sufficient cause has not been shown explaining the delay, only on the basis of mechanical pleading the delay cannot be condoned.
The plea that the Tribunal was closed for summer vacation in the month of June, 2012, according to the Respondent No. 2 is not a good ground, and as such the Appellant/Applicant has totally failed to establish that the delay was not deliberate or intentional. Further, it is stated that the delay was not bonafied as would be clear from the history of the case, in as much as number of proceedings i.e. two appeals, two original applications and one review petition, had been initiated and pursued against the respondent by the appellant and he was aware about the requirements. Further, it clearly reveals that the Appellant/Applicant by filing speculative litigations, one after the other, is trying to harass the Respondent and that he has not come to the court with clean hands.
Repudiating, the averments made in the applications for condonation of delay to the effect that the appellant/applicant consulted with other villagers of Bhadreshwar is stoutly denied and it is specifically averred that the appellant/applicant was fully aware about the impugned order and the delay in filing this appeal, lacks bonafidy. Relying upon the ratio of several decisions, it is averred that as the Appellant/Applicant has failed to advance valid and sufficient reasons, it is a fit case where the petition for condonation of delay should be dismissed in limini.
Admittedly, the appeal has not been filed within 30 (thirty) days of the impugned order, but then it has been filed within 90 (ninety) days, thus, in consonance with the provisions of Section 16 of the National Green Tribunal Act, 2010, this Tribunal, if it is satisfied that the Appellant/Applicant was prevented by sufficient cause from filing the Appeal within 30 (thirty) days can entertain the same.
We heard Learned Counsel for the parties at length. Mr. Raj Panjwani, Learned Senior Advocate appearing for the Appellant reiterated the stand taking in the petition for condonation of delay and submitted that the applicant/appellant was diligently pursuing the litigation all through and no deliberate latches whatsoever can be attributed to the conduct of the Appellant/Applicant. According to Mr. Panjwani a litigant always has a choice of his counsel, and there is nothing wrong if he waits to consult him, more so when number of litigations are pending.
In the case in hand, as number of litigations were pending, the applicant/appellant thought it prudent to wait for his counsel who was appearing in other cases so that a proper advice can be obtained. Admittedly, this Tribunal was closed for summer vacations till 30th June, 2012 only thereafter he consulted his advocates and Senior Advocates, discussed with the persons / villagers who were going to be affected by the project, consulted with persons having scientific background and only thereafter decided to prefer the appeal. All the aforesaid facts according to Mr. Panjwani clearly reveal that the appellant/applicant was pursuing the matter bonafidely and was able to file the appeal only after completing all paraphernalia. Thus, there are sufficient reasons to condone the delay.
On the other hand, Mr. Krishnan Venugopal, Learned Senior Advocate appearing for Respondent No. 2 resisted the application for condonation of delay. According to Mr. Krishnan Venugopal, the applicant/appellant was aware about the date of order and unintentionally and deliberately delayed in filing the appeal. The reasons assigned for not filing the appeal in time are after thoughts, and the same are not bonafied. That apart, the said reasons could not be nomenclatured as sufficient reasons and it is a fit case where the petition for condonation of delay should be dismissed.
In support of his contentions, Mr. Krishnan Venugopal, Senior Advocate relied upon the judgment of the Hon'ble Supreme Court in the case of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields Limited(1962) 2SCR 762. In the said case, after elaborate discussions of the scope of Section 5 of the Limitation Act, the Hon'ble Court was pleased to condone the delay.
Further, Learned Counsel for the respondent relied upon the decisions of Pundlik Jalam Patii vs. Executive Engineer Jalgaon medium project and another (2008) 17SCC448. In the said case the Hon'ble Supreme Court observed as follows:
"The respondent beneficiary of the acquisition did not initiate any steps whatsoever before the expiry of limitation and no circumstances are placed before the Court that steps were taken to file appeals but it was not possible to file the appeals within time."
The facts of the said case are completely different from the case in hand. That apart, the delay in the said case was 1724 days whereas in the case in hand, the delay is negligible, and this Tribunal has power to condone the delay which is less than 90 (ninety) days, if there is sufficient reasons.
In the case of Ajit Singh Thakur Singh & Anr. Vs. State of Gujarat (1981)1SCC495, relied upon by Mr. Krishnan Venugopal the Hon'ble Supreme Court clearly observed that a person pleading sufficient cause for not filing an appeal earlier must establish that because of some event or circumstances arising before limitation expired it would not be possible to file an appeal within time, no event or circumstance arising after the expiry of limitation can constitute such sufficient cause.
The legislature under the provision of Section 16 of the NGT Act has conferred the power to condone delay up to 60 (sixty) days after the period of limitation which is 30 (thirty) days. This has been contemplated with a pious objective of enabling this Tribunal do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" used by the legislature is adequately elastic to enable the Tribunal to apply the law in a meaningful manner which subserves the ends of justice. The Supreme Court in the case of Collector, Land Acquisition, Anantnag and Another Versus Mst. Katiji and Others (1987)2 Supreme Court Cases 107, laid down 6 (six) guidelines to be kept in mind while dealing with limitation:-
"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
"Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational commonsense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account for mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
In the case of Ram Nath Sao Versus Gobardhan Sao and others (2002) 3 SCC 195, the Supreme Court while dealing with the word "sufficient cause" observed that a liberal construction has to be given so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party.
We heard learned counsel diligently and went through the pleadings in the touch stone of the principles decided in the decisions cited above.
For explaining the delay, the appellant/applicant has categorically averred that due to pendency of several litigations he was not sure as to whether the impugned order should be assailed by filing a separate appeal and he had to wait till the end of summer vacation to obtain legal advise as the counsel who was handling the matter was out of the city. The appellant/applicant has also clearly stated that the complexities involving in the case, particularly with regard to the scientific / technical aspects, vis-à-vis the technical change made by the amendment of EC and the affect thereof on the environment as well as ecology, is a matter which needed deliberation and re-examination with technical persons and villagers who are likely to be affected.
The history of the case and the submissions advanced inter-se by the parties, leads to a conclusion that in a case like the present one, where the environmental impact of the project on local population in terms of environmental implications, has to be assessed, the approach of this Tribunal, especially set up for the said purpose, should be literal and not "hyper-technical".
The nature of the disputes, as would be evident, from the aims and objectives of the N.G.T. Act, this Tribunal is expected to adjudicate upon, is not really a lis between the litigant parties and or adversary litigations. The jurisdiction of this Tribunal is necessarily a wider one whereby the impact of the decision granting EC vis-à-vis the effect thereof on the local community or environment in general and ecology in particular has to be considered. The Tribunal is expected to adopt a broad and liberal approach rather than narrow and cribbed one.
That apart, as stated earlier some litigations relating to clearances granted to the aforesaid project are still sub-judice before this Tribunal, thus, we find no reason to prevent the appellant/applicant to put forth his grievance so as to facilitate affective and efficacious adjudication of the environmental problems for all times to come.
In view of the discussions made above, and on being satisfied that there was sufficient reasons for not approaching this Tribunal within 30 (thirty) days and further as the delay being less than 90 (ninety) days i.e. 31 (thirty one) days, after appreciating the pleadings and documents referred, we hold that deliberate latches cannot be attributed to the appellant/applicant and that the reasons assigned are sufficient to condone the delay. This petition for condonation of delay is accordingly allowed.
Parties to bear their own costs. List this appeal for admission on 5th of October, 2012.