Jesurethinam Convernor And Others vs Ministry Of Environment And Forests Union Of India And Others

We have heard learned counsel for the parties.

A preliminary objection is raised by learned counsel for respondent No. 5 i.e. Project Proponent. The tenor of the objection is that the appeal is not maintainable in as- much- as the order impugned is dated 13.10.2010 which was rendered prior to commencement of the National Green Tribunal Act, 2010. It is argued that the order passed before commencement of the special enactment cannot be challenged by way of an appeal in the Tribunal which did not exist as on the date of such order. The learned counsel for the Respondent No. 5 invited our attention to Judgment of this Tribunal in Appeal No. 14/2011. By the said Judgment, a Division Bench of this Tribunal categorically held that the appeal against order passed prior to commencement of the National Green Tribunal Act, 2010 is not maintainable. The National Green Tribunal Act, 2010 came into force on 18.7.2010. A combined reading of relevant provisions, particularly Section 16 of the National Green Tribunal Act, 2010 will make it amply clear that the appeal cannot be filed against any order passed prior to 18.10.2010.

In our opinion, the appeal is governed by specific provision (Section 16) of the special enactment. It is well -settled that there is no inherent right to prefer an appeal. It is also well-settled that an appeal is creature of statute. It follows, therefore, that unless there is specific right available under an enactment to prefer an appeal, the same cannot be filed as a matter of right.

Section 16 of the National Green Tribunal Act, 2010 reads as follows.

"Section 16

a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010 by the appellate authority under Section 28 of the Water(Prevention and Control of Pollution) Act, 1974(6 of 1974)

b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under Section 29 of the Water (Prevention and Control of Pollution) Act, 1974(6 of 1974)

c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under Section 33-A of the Water(Prevention and Control of Pollution) Act, 1974(6 of 1974);

d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010 by the appellate authority under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977(36 of 1977);

e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under Section 2 of the Forest(Conservation) Act, 1980(69 of 1980);

(f) an order or decision, made on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution)Act, 1981(14 of 1981);

(g) any direction issued, on or after the commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment (Protection) Act, 1986 (29 of 1986);

(h) 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);

(i) an order made, on or after the commencement of the National Green Tribunal, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection)Act, 1986 (29 of 1986);

(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2012(18 of 2003), may, within a period of thirty days from the d ate on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal;

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."

The prescribed a period of limitation to prefer an appeal is of 30 days. That period of limitation can be extended up to 60 days. It follows that at the most the limitation period can be stretched up to the period of 90 days. It is trite that when a specific provision for limitation is provided under a special statute, the general provisions of the Limitation Act, 1963 are inapplicable. Needless to say that exclusion of period by taking aid from provisions like Section 14 of the Limitation Act is impermissible. Still however, in view of the observations of the Supreme Court in case of Vimal Bhai Vs. Union of India & others, in SLP to Appeal(Civil) No. 12065 of 2009 in order dated 13.5.2011, we refrain ourselves from dealing with the issue of Limitation.

The learned counsel for the Respondent No. 5 has also brought on record an order dated 30.05.2011 passed by a Coordinate Bench of this Tribunal. That appeal was dismissed in view of the Judgment in Appeal No. 14/2011. We find it difficult to give a go-by to the Judgment of the Coordinate Bench. Consequently, we find it appropriate to follow the same view taken by the Coordinated Benches.

In the result, we hold that the appeal is not maintainable for the reasons discussed above and also for the reasons enumerated in the Judgment rendered by the Coordinate Bench in Appeal No. 14/2011. In this view of the matter, the appeal is dismissed as it is not maintainable. No costs.