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Miscellaneous Application (M.A) No.16 of 2016 is filed by the proposed Appellant to condone the delay of 345 days in re-presenting the grounds of Appeal in Diary No.769 of 2014. The Appeal is sought to be filed against a common order dated 28.11.2014 made in Appeal Nos.52 and 53 of 2013 by the Appellate Authority, Tamil Nadu Pollution Control Board, Chennai. The said Appeals relate to the Consent issued by the Tamil Nadu State Pollution Control Board (Board) to the Project Proponent, the proposed Appellant Company who filed the aforesaid M.A for the purpose of condoning delay of such a large number of days in re-presenting the papers. The Applicant in support of the M.A., has stated that originally, one Mr. Murali Mohan, Country Manager, India of the proposed Appellant has been following up the above proceedings before the Appellate Authority, Tamil Nadu Pollution Control Board ,and subsequently he left the proposed Appellant's Company on 10th October, 2013. Thereafter, one, Mr. Ashish Salot, Group Internal Audit Head is said to have been following up before the Appellate Authority which has allowed the Appeals vide its common order dated 28.11.2014 and as a result the Consent order issued by the Board dated 23.5.2012 stands set aside.
It is the case of the proposed Appellant that the order dated 28.11.2014 passed by the Appellate Authority, Tamil Nadu Pollution Control Board, was brought to the knowledge of the proposed Appellant by Mr. Ashish Salot and immediately thereafter the proposed Appellant has informed Mr. Ashish Salot to instruct the counsel to file an Appeal before the Tribunal against the said order. It is stated that Mr. Ashish Salot has informed the proposed Appellant that the earlier counsel has filed Appeal on 27.12.2014 before the Tribunal and therefore the proposed Appellant was under the impression that the Appeal has already been filed before the Tribunal against the order dated 28.11.2014. The said Mr. Ashish Salot has resigned from the service of the proposed Appellant on 31.8.2015. Thereafter, the proposed Appellant has approached the earlier counsel on record to find out the status of the Appeal and came to understand that the earlier Appeal was filed against the Appeal in Diary No.769 of 2014 before the Tribunal on 26.12.2014. It is also stated that the said Counsel has informed the proposed Appellant that though the Appeal has been presented before the Tribunal, there is no instruction from the proposed Appellant to follow up the matter and hence he has not pursued the Appeal. The Counsel is stated to have expressed that since there was no one to follow up or to instruct him, he was not interested in pursuing the case and hence came forward to return the papers and also agreed to give consent for change of vakalath. The proposed Appellant who is stated to have an office at Mumbai and is not familiar with counsel in Chennai, after great difficulty approached the present advocate and entrusted the matter for further processing in the month of January, 2016 and thereafter he was informed that the present counsel has filed the change of Vakalath on 18.1.2016 and collected the papers from the Registry of the National Green Tribunal (NGT) on 18.01.2016. According to the proposed Appellant, the Registry has returned the papers on 02.02.2015 for compliance of certain defects and granted two weeks time to comply with the defects and re-present the same and the proposed Appeal was filed within the period. Due to the aforesaid reasons there is a delay in re-presentation of papers and therefore the applicant has prayed for condonation of 345 days delay in re-presenting the proposed Appeal.
The learned Senior Counsel, Mr. Vijay Narayan appearing for the Applicant has submitted that even though there are no specific provisions available in the National Green Tribunal Act, 2010 (NGT Act,2010) and Rules made thereunder, the NGT which is performing judicial function has got inherent powers to condone delay in re-presentation in cases where sufficient cause is explained and in order to render substantial justice on merits of the case. He has relied upon the judgment of the Hon'ble Madras High Court reported in (2007) 4 MLJ 635 in the matter of D. Muralidharan v. Chinnappan (died) & others to substantiate his contention about the distinction between the period of limitation prescribed and the period of re-presentation of the returned papers. He has also submitted that while Section 5 of the Limitation Act,1963 will apply for the purpose of condonation in filing Appeal or Application, in respect of re-presentation of the papers which have been returned it may be due to fault on the part of the counsel or any other reasons. The powers of the Court /Tribunal are inherent and the Courts / Tribunals have to see the reasons behind such delay and also to some extent on merits of the case also to render justice.
He has also relied upon the judgment of the Hon'ble Delhi High Court reported in AIR 2009 Delhi 179 in Union of India v. Ogilvy and Mather Ltd. and another wherein while dealing with Arbitration and Conciliation Act, 1996 ( Act of 1996) the Delhi High Court has opined that the High Court will have inherent powers while dealing with applications filed under Section 34 against award of the arbitral tribunal as that of Civil Courts as contemplated under Section 151 of Code of Civil Procedure (CPC),1908.
He has specifically relied upon another judgement of the Division Bench of Hon'ble Delhi High Court reported in 2012 (3) ARBLR 349 (Delhi) in the matter of Delhi Transco Ltd. & Anr. v. Hythro Engineers Pvt .Ltd . which also relates to the issue under the Act of 1996 and it is contended that the Act of 1996 and the NGT Act, 2010 are similar in the sense that in both the Acts there are no provisions enabling the Court / Tribunal to condone delay in re-presentation and therefore when once the High Court has held in respect of the Act of 1996 that, right of condonation of delay in re-re-presentation is inherent under Section 151 of the CPC and the same should be made applicable to the NGT also. The Senior Counsel has also contended that even though in effect Section 151 is not made applicable, many of the provisions of the CPC are specially applied and therefore he would submit that the Tribunal must be liberal in condoning delay in re-presentation. He would also submit that there is no fault on the part of the litigant and merely because there is a lethargic attitude on the part of the officer of the proposed Appellant Company or the learned Counsel, it should not affect the interest of the litigant. Thus while substantiating the period of delay, learned Senior Counsel pleaded that the delay of 345 days in re-presenting the grounds of Appeal, can be condoned by the Tribunal.
We have considered the contentions raised by the Senior Counsel for the Applicant and also referred to the affidavit filed by the Applicant in support of its application for condonation of delay in re-presentation and duly applied our mind. The NGT is created under the NGT Act, 2010 and inasmuch as the NGT Act is a self contained code and the Tribunal is the creature of the Act it goes without saying that the Tribunal's jurisdiction is limited within the four corners of the provisions of the NGT Act. When we see the whole object of the constitution of the NGT under the NGT Act, 2010, it is clearly stated in the preamble that the NGT Act provides for establishment of a Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.
The NGT Act also contemplates that the Tribunal shall dispose of the application / Appeal as far as possible within a period of 6 months time. Therefore, by reading the contents of the preamble along with the time limit which has been prescribed under the NGT Act, one can understand that the makers of law were desirous of having speedy disposal of cases in respect of environmental issues which is in public interest.
Keeping the above said aspects in mind, we have to further refer to some of the provisions of the NGT Act, 2010. Section 16 of the NGT Act confers appellate jurisdiction upon the Tribunal and Section 16 (a) and (b) enables the Tribunal to take up the Appeals to examine the validity of the orders passed by the appellate authority under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. There are many instances under Section 16 for invoking the appellate jurisdiction of the Tribunal. But the said section makes it very clear that any such Appeal shall be filed within a period of 30 days from the date on which the order or decision or direction or determination is communicated to the Appellant preferring Appeal to the Tribunal. There is a provision of condonation of delay of 60 days if it is satisfied to the Tribunal that the Appellant was prevented by sufficient cause from filing the Appeal within the said period of 30 days. Therefore, it is clear that the Appeal has to be filed within 30 days from the date of passing the order by the Appellate Authority by communicating the same and only a maximum of 60 days delay can be condoned.
Section 19(1) of the NGT Act, 2010 specifically states that the Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice. However, Section 19(4) reads as follows:-
"(4) The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) reviewing its decision;
(g) dismissing an application for default or deciding its exparte;
(h) setting aside any order of dismissal of any application for default or any order passed by it ex parte;
(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or Appeal filed under this Act;
(j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;
(k) any other matter which may be prescribed."
Thus Section 19 enumerates certain circumstances wherein power of a Civil Court conferred by the Code of Civil Procedure, can be exercised by the Tribunal. When we see the entire aspect of Section 19 (4) it will be quite clear that the purpose is to see that the proceedings are effectively and efficiently carried out and therefore these procedural powers of Civil Court under the CPC have been conferred on the Tribunal. However, it remains a fact that nowhere the provisions speak about the powers of the Tribunal to condone delay in re-presentation.
There is one other aspect which is relevant under Section 19(5) of the NGT Act which makes the proceeding before the Tribunal as a judicial proceeding. As we have stated earlier the makers of law are desirous to have the proceedings before the Tribunal completed within the prescribed period as it is seen that under Section 18(3) of the NGT Act which reads as follows:-
"Section 18(3) The application, or as the case may be, the Appeal filed before the Tribunal under this Act shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the application, or, as the case may be, the Appeal, finally within six months from the date of filing of the application, or as the case may be, the Appeal, after providing the parties concerned an opportunity to be heard."
Rule 10 of the Nation Green Tribunal (Practices and Procedure) Rules, 2011 (NGT Rules) deals with rectification of defects and enables the Registrar or any authorised officer of the Registry to return the papers for compliance of certain defects with a direction to re-present after rectification within a fixed time. Therefore, for fixing of the time limit in which the papers are to be returned, such powers have been vested with the Registrar under Rule 10 (1) of the NGT Rules.
Rule 10(3) reads as follows:
"The Registrar may, for good and sufficient reasons extend the time for rectifying the defects, provided the total period for rectification including the extended period does not exceed thirty days."
Further Rule 10(5) reads as follows:
"If the party or his legal practitioner rectifies the defects and re-presents the application or Appeal or pleading within the time granted, the Registrar on being satisfied may order for its registration and acceptance and number as specified in Rule 9."
After rectification and re-presentation, the Registrar may accept the case and process the same in accordance with Rule 9, as the aforesaid power is vested with Registrar for the purpose of extending the period for rectifying the defects. Admittedly there is no express provision either under the Act or under the Rules enabling the Tribunal to have inherent power to condone delay in re-presentation of papers or otherwise the power of Civil Court conferred under Section 151, CPC is not expressly provided under the NGT Act.
The reference made to the Judgment reported in (2007) 4 MLJ 635 in the matter of D. Muralidharan v. Chinnappan (Retired) and others the Hon'ble Madras High Court was dealing with the powers of Civil Court in dealing with Interlocutory Application and handle with legal records wherein it was held that there is a clear distinction between application filedfor condonation of delay in the proper presentation pursuant to Section 5 of the Limitation Act,1963 and the application to condone the delay in re- presentation under Section 151 of the CPC. The Madras High Court has also relied upon the other judgments referred to therein and held that in respect of condonation of delay in filing original application, the powers relate to statute and in respect of the powers in condoning the period for re- presentation it should be referable to the inherent power of the Civil Court as conferred under Section 151, CPC The Hon'ble Madras High Court has held in paragraphs 8 and 9 as follows:
"8. First let me consider whether there is any difference between a petition filed for condonation of delay in the proper presentation pursuant to Section 5 of the Limitation Act and the petition to condone delay in re-presentation under Section 151, CPC.
In 1978 TLNJ 322 (cited supra), a learned Single Judge of this Court held that there is a difference between these two petitions and the considerations relevant for a petition filed to condone the delay in presentation for a proceeding will not apply to a petition filed to condone the delay in re-presentation of papers. The learned Judge went on to hold that notice to respondent in a petition filed to condone the delay in re-presentation, the other side is not said to be the aggrieved party and he cannot challenge the order before the High Court under Sec.115 of CPC. The relevant portion of the order reads as under:
I may point out in this context the difference between the condonation of delay in the proper presentation of a particular proceeding pursuant to Section 5 of the Limitation Act and the condonation of delay in the re-presentation of a particular proceeding obviously under the inherent powers of the Court under Section 151 of Code of Civil Procedure. In the former case there is a specific provision in the statute, namely, the Limitation Act which imposes an obligation on the Court itself suo motu to reject a proceeding if it is barred by limitation. That strictness is not available or applicable to a case of a delay in the re-presentation of the proceeding in question. Consequently, the provisions and considerations applicable to excusing the delay under Section 5 of the Limitation Act will not apply to the question of excusing the delay in re-presenting the papers and therefore the considerations relevant to excusing the delay with reference to petitions, disposable under the Limitation Act, will bear no analogy to those relevant to a decision of the question in the present controversy. I have proceeded on broad considerations and in a proceeding and the delay in the re-presentation of the papers with reference thereto. In view of the basis difference between the two, I am of the opinion that the considerations relevant to the former will not apply to the latter and in an application for excusing the delay in re-presenting the papers in any proceeding, whether it be a suit, a civil revision petition, a first Appeal or a second Appeal in any court, notice to the respondent in the main case is not necessary and even if such notice is given to the respondent and he is heard and overruling his objection the delay is condoned, he cannot be said to have been aggrieved in the sense of there being a judicial determination against him so as to entitle him to approach the High Court under Section 115 CPC of Civil Procedure. In view of this, I hold that this petition is not maintainable and reject the same."
Inasmuch as the said Judgement relates to the powers of Civil Court there is no dispute, as CPC itself confers such inherent powers to Civil Court under Section 151 CPC. But in the present case we are concerned with the special statute which is silent on such inherent powers.
Therefore, the above said Judgement is of no relevance for the purpose of deciding the issue involved in this case. Insofar as it relates to the Judgment of the Hon'ble Delhi High Court rendered in the case of Union of India v. Oglivy and Mather Ltd. and anr. reported in AIR 2009 Delhi 179 it is true that the issue involved in this case relates to the powers of the High Court under Section 34 of the Act of 1996 to set aside the arbitral award and deals with the powers of the High Court for condoning the delay in re- filing. The Hon'ble Delhi High Court has observed in Paragraph 10 of the said Judgment as follows:-
"10. I have heard learned counsel for the parties and also gone through the record of the case. The case in hand is considered by me while looking into the two propositions of law which are as under:-
a) Exclusion of Section 5 of Limitation Act from the purview of Section 34 of the Arbitration and Conciliation Act, 1996.
b) Exclusion of Section 5 of Limitation Act while considering the case of re-filing."
Therefore, it is the contention of the learned Senior Counsel that while considering the application, the High Court held that it has inherent power in dealing with application under the Act of 1996 even especially in the absence of any provision under the said Act enabling the High Court to condone the delay in re-presentation. The learned Senior Counsel has also relied upon a Division Bench Judgment of the Hon'ble High Court of Delhi reported in 2012 (3) ARBLR 349 (Delhi) in the matter of Delhi Transco Ltd & Anr. v. Hythro Engineers Pvt Ltd. This is also relating to the condonation of delay in re-filing the objections under Section 34 of the Act of 1996. The Hon'ble Delhi High Court while considering the issue relied upon a decision of the same court in the case of Executive Engineer v. Shree Ram Construction Company reported in 2010 (12) DRJ 615 (DB) and held that such powers of condoing delay in re-filing are not strictly as that of application to condone delay in filing the original application and in respect of condoning the delay in re-filing more strict attitude should be followed. In the said judgment there is a reference of the Judgment of the Hon'ble Supreme Court in State of Goa v. Western Builders (2009) 6 SCC 239 wherein while dealing with the condonation of delay ruling of the Supreme Court is as follows:
"41. The question, which still requires to be answered, is whether a reasonable explanation has been given with regard to delay of 258 days in the re-filing of the objections. Since this delay crosses the frontier of the statutory limit, that is, three months and thirty days, we need to consider whether sufficient cause had been shown for condoning the delay. The conduct of the part must pass the rigorous test of diligence, else the purpose of prescribing a definite and unrealistic period of limitation is rendered futile. The reason attributed by the Appellant for the delay is the ill health of the Senior Standing Counsel. However, as has been pithily pointed out, the Vakalatnama contains the signatures of Ms. Sonia Mathur, Standing Counsel for the Department; in fact, it does not bear the signature of Late Shri R.D. Jolly. Because of the explanation given in the course of hearing, we shall ignore the factum of the Vakalatnama also bearing the signature of another Standing Counsel, namely, Ms. Prem Lata Bansal. We have called for the records of QMP No.291/2008 and we find that the Objections have not been signed by Late Shri R.D. Jolly but by Ms. Sonia Mathur on 09.08.2007, on which date the supporting Affidavit has also been sworn by the Director of Income Tax. In these circumstances, the illness of Late R.D. Jolly is obviously a smokescreen. No other explanation has been tendered for the delay. The avowed purpose of the A&C Act is to expedite the conclusion of arbitral proceedings. It is with this end in view that substantial and far reaching amendments to the position prevailing under the Arbitration Act 1940 have been carried out and an altogether new statute has been passed. This purpose cannot be emasculated by delays, intentional or gross, in the course of re-filing of the Petition/Objections. The conduct of the Appellant is not venial. We find no error in the conclusion arrived at by the learned Single Judge and accordingly dismiss the Appeal CM. No.5212/2009 is also dismissed.´
Ultimately, the Division Bench of the Delhi High Court has stated that leniency and liberal approach must be in respect of the case of condonation of delay in filing and such leniency should not be shown in respect of the delay in re-presentation, in Para 9 which reads as follows:-
"9. It is in Shree Ram Construction Co. (supra) that the Court actually examined as to what is the magnitude of delay in re-filing, which the Court may tolerate and permit to be condoned in a given case. Obviously, there cannot be any hard and fast rule in that respect, and the Court would have to examine each case on its own facts & merits and to take a call whether, or not, to condone the delay in re-filing the objection petition, when the initial filing of the petition is within the period of limitation. However, what is to be borne in mind by the Court is that the limitation period is limited by the Act to three months, which is extendable, at the most, by another thirty days, subject to sufficient cause being disclosed by the petitioner or to explain the delay beyond the period of three months. Therefore, it cannot be that a petitioner by causing delay in re-filling of the objection petition, delays the re-filling to an extent which goes well beyond even the period of three months & thirty days from the date when the limitation for filing the objections begins to run. If the delay in re-filing to an extent which goes well beyond even the period of three months & thirty days from the date when the limitation for filing the objections beings to run. If the delay in re-filing is such as to go well and substantially beyond the period of three months and thirty days, the matter would require a closer scrutiny and adoption of more stringent norms while considering the application for condonation of delay in re-filling, and the court would conduct a deeper scrutiny in the matter. The leniency shown and the liberal approach adopted, otherwise by the Courts in matter of condonation of delay in other cases would, in such cases, not be adopted, as the adoption of such an approach by the Court would defeat the statutory scheme contained in t he Act which prescribes an outer limit of time within which the objections could be preferred. It cannot be that what a petitioner is not entitled to do in the first instance, i.e to file objection to an award beyond the period of three months & thirty days under any circumstance, he can be permitted to do merely because he may have filed this objections initially within the period of three months, or within a period of three months plus thirty days, and where the re-filing takes place much after the expiry of the period of three months & thirty days and, that too, without any real justifiable cause or reason."
Therefore, by referring to the above two judgments of the Hon'ble High Court of Delhi in the light of the Act of 1996, it is clear that the condonation of delay in re-filing is to be treated as an inherent power as that of Civil Court under Section 151, CPC. It is true that there are differences between the Act of 1996 and the NGT Act, 2010, as the object of the Acts are totally different altogether as one is to settle the commercial disputes and the other is relating to matters of public importance. However, regarding the power of condonation of delay both the special Acts do not provide specific provisions and in the light of the same the High Court, in our considered view correctly, held that as the Civil Court, it has got powers to condone delay in re-presentation. However, the reasons which are adduced for such delay must be strictly construed. In fact it was observed by the Division Bench that while considering the delay in re-presentation one has to construe strictly. The present facts and circumstances of the case, we are of the considered view, taking into consideration the object of the NGT Act, even though the powers of the Tribunal are that of Civil Court inherent powers are available however with strict and stringent conditions. In the light of the above said decisions we have to decide the factual scenario. Even though it is admitted that the Appeal was filed in time, for re-presentation, the proposed Appellant has re-presented the Appeal with 345 days delay. The reasons adduced for such delay are that at one point of time the proposed Appellant has chosen to find fault with his own official and at a later point the proposed Appellant has chosen to accuse his own counsel. We are of the considered view that these are not the circumstances which are to be considered for the purpose of condonation of delay, especially, in the light of the object of the NGT Act and on the factual matter of huge delay of 345 days. We are fully satisfied that the reasons adduced are not acceptable for the purpose of condonation of delay of such large number of days in re-presentation. Moreover, on the facts of the present case it is clear that originally the Board has granted Consent which was cancelled on Appeal by the Appellate Authority against which the proposed Appellant preferred the Appeal before the Tribunal with such a huge delay of 345 days for re-presentation of papers. In fact the proposed Appellant should have been more diligent to prefer and pursue the Appeal as the Consent given to it was set aside by the Appellate Authority and the applicant has been virtually prohibited to proceed with the project.
Under the facts and circumstances of the case, the M.A. No. 16 of 2016 for condonation of delay is dismissed. Consequently M.A. No. 17 of 2016 also stands dismissed and the unnumbered Appeal stands rejected.