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Judgment
We have heard Learned Counsel for the appellant.
We will first deal with both the delay condonation applications filed by the appellant.
According to the appellant the time spent in litigating before the Karnataka State Appellate Authority in Appeal Nos. 22/2010 and Appeal No. 23/2010 is required to be excluded. It is further stated that there is marginal delay of 2 days in filling of the appeal which needs to be condoned. The second application is for exclusion of time under Section 16 of the National Green Tribunal Act, 2010 whereas the first application is for exclusion of time under Section 14(2) of the Limitation Act, 1963.
In order to amplify understanding of the fact situation, it may be noted that Karnataka State Pollution Control Board passed an order dated 1st August,2010 whereby several industries including appellant's industry was directed to be relocated. The Pollution Board came to the conclusion that the industry is situated within T.G. Halli Reservoir Catchment area (for short 'TGR') which is the industrial zone wherein activities are restricted. The appellant challenged that order of the State Pollution Board by filling two appeals (Appeal No. 22/2010 and Appeal No. 23/2010, separately). Both the appeals were decided by common order dated 26th April, 2011. They were dismissed by the Karnataka State Appellate Authority. The appellant thereafter preferred a review application alleging that there was error on the face of the record. The review application was also dismissed by the Karnataka State Appellate Authority by order dated 29th June, 2011. By filling Writ Petition No. 34075/2011 and Writ Petition No. 47584/2011, the orders of the State Appellate Authority and that of the Pollution Board were challenged before the Karnataka High Court. The writ petitions, however, were withdrawn by the appellant on 28.8.2012, with liberty to file proceedings before this Tribunal. The appellant thereafter filed present appeals on 9.4.2012. The appellant seeks exclusion of 308 days under Section 14(2) of the Limitation Act, 1963 and also seeks condonation of two days delay which appears to have been committed in filling of the appeals.
Learned Counsel for the appellant strenuously argued that the appellant was unable to file the appeals before this Tribunal because the Tribunal was to be established when the order was passed by the State Pollution Board. He argued that time was consumed in pursuing the remedy of review application and also filling of writ petitions before the High Court of Karnataka. He submits that there was no intention to go to wrong forum and therefore the time is required to be excluded under Section 14(2) of the Limitation Act, 1963. He further submits that in view of Section 29 of the Limitation Act, 1963, the exclusion of time under Section 14(2) of the Limitation Act, 1963 is permissible. He pointed out that applicability of Section 14(2) of the Limitation Act, 1963 is not categorically excluded under the provisions of the National Green Tribunal Act, 2010 and therefore the appellant is entitled to avail the exclusion of such time.
Now, it will be useful to examine parameters envisaged under Section 14(2) of the Limitation Act.
Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a Court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before section 14 cab be pressed into service:
Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
The prior proceeding had been prosecuted with due diligence and in good faith;
The failure of the prior proceeding was due to defect of jurisdiction or other cause like nature;
The earlier proceeding and the latter proceeding must relate to the same matter in the issue and;
Both the proceedings are in a court;
Learned Counsel appearing for the appellant invited our attention to observations in Consolidated Engineering Enterprises Vs. Principal Secretary Irrigation Department & others (2008) 7 SCC 169. He contended that Section 14 of the Limitation Act will be attracted in the present case. The Apex Court, in the given case, observed:
"When any special statute prescribes certain period of limitation as well as provision for extension up to specified time-limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting sub- Section(3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded. However, merely because it is held that Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Act for setting aside an award, one need not conclude that provisions of Section 14 of the Limitation Act would also not be applicable to an application submitted under Section 34 of the Act of 1996."
The Learned Counsel for the appellant further submits that the appellant had never conceded for shifting of the industry though it has been wrongly observed by the Karnataka State Appellate Authority that it was so conceded. The Learned Counsel further submits that the orders of the State Pollution Board and the Appellate Authority may cause great injustice to the appellant. He therefore seeks indulgence of this Tribunal.
The short question for consideration is whether exclusion of the time under Section 14 of Limitation Act is permissible and whether further delay of 2 days can be condoned. So far as exclusion of the time under Section 14(2) of the Limitation Act,1963, is concerned, even though it is accepted that such exclusion is permissible under the law, then also it is difficult to countenance the argument of Learned Counsel for the appellant. The background facts of the present appeals will show that the appellant sought review of the order passed by the State Appellate Authority though there was no provision under the enactment to prefer filling any review application. The appellant appears relied upon judgment of Supreme Court in Kapra Mazdoor Ekta Union Vs. Birla Cotton Spinning and Weaving Mills Ltd. and Another (2005) 13 SCC 777 and Bachahan Devi And Another-Vs- Nagar Nigam, Gorakhpur And Another (2008) 12 SCC 372. The Apex Court held that unless power of review is conferred by law or by necessary implication, review is impermissible though procedural review may be permissible. The State Appellate Authority rejected the review application on two fold counts. The State Appellate Authority observed :
"Several industries whose consent applications were rejected by the respondent- Board who were directed to be closed have filed several appeals and all those appeals were dismissed by this Authority. In appeal Nos. 22/2010 and 23/2010 also, the appellants just sought a long time to shift the industry. In view of the fact that the industries are surrounding the Trippagondanahlli Reservoir from where drinking water is supplied to Bangalore city and will be very risky to allow the industries other than the ones specified under the Zoning regulations, and more over, all these industries have been going on seeking time to shift to their industries to some other place every now and then but, still none appears to have shifted and therefore we were not inclined to grant a long time to any of the industries. The applicants/appellants appeals were dismissed granting three months time to shift their industries. Now, the applicant/appellants have filed these applications as review petitions under the Civil Procedure Code."
Though the appellant states that no concession was given and the appeals were argued before the State Appellate Authority on merits, yet the above referred observations of the State Appellate Authority cannot be lightly brushed aside. It is difficult to say that there was no concession given to the appellant. It is well settled that the fact finding of the Court or Tribunal, as reflected from the Judgment or order, will have to be given due sanctity.
Another limb of the contention of the appellant is that the litigation was being fought before wrong forum and therefore that time spent has to be excluded. It is but natural that the question to be addressed is whether the appellant was bonafidely litigating before any forum having no jurisdiction. In other words, it will have to be seen whether the earlier proceedings were taken up to the forum which had no jurisdiction to deal with the same.
The National Green Tribunal Act, 2010 came into force on 18th October, 2010. However, the rules were framed on 5th May, 2011 and the notification was issued on 7th August, 2011. It appears that the review application before Appellate Authority was filed 23th May, 2011. After dismissal of the review petition, the appellant could have filed the appeals in this Tribunal, seeking condonation of delay, if any. Instead, the appellant preferred the two Writ Petitions (WP No. 34075/2011 and 47584/2011) before Karnataka High Court. As stated before, both the Writ Petitions were withdrawn on 28th February, 2012, with liberty to file appeals before this Tribunal. Mere grant of the liberty by the High Court will not be enough to assume that the High Court excluded the time under Section 14 (2) of the Limitation Act, 1963. Then this Tribunal had jurisdiction to deal with present appeals.
It cannot be said that as on the date of filling of the Writ Petitions, the High Court had no jurisdiction to entertain the Writ Petitions. The power of the High Court to entertain the Writ Petitions under Article 226 of the Constitution is not taken away by the National Green Tribunal Act, 2010. For the purpose of Section 14(2) of the Limitation Act, 1963 it is essential to demonstrate that the failure of the prior proceeding was due to defect or other cause of like nature. Withdrawal of the earlier Writ Petition was at the will of the appellant and not as per order of the High Court. As observed earlier, there was no defect in jurisdiction which compelled the appellant to withdraw the Writ Petitions nor the High Court observed that it had no jurisdiction on account of availability of alternative remedy.
The appellant himself cannot say that the Writ Petitions were not maintainable because of availability of alternative remedy. The doctrine of alternative remedy ills self-imposed restriction while exercising power under Article 226 of the Constitution. So, unless the High Court had expressed any opinion that because of alternative remedy available to the appellant, the Writ Petitions were likely to be dismissed, withdrawal of the writ petitions will be no avail to the appellant to seek exclusion of the time spent before the High Court. In our opinion, therefore, the time spent by the appellant in pursuing the remedy for review of the order of the State Appellate Authority and also the time spent before the Karnataka High Court cannot be excluded under Section 14(2) of the Limitation Act, 1963.
In this context, we may refer to the Judgment of this Tribunal in Appeal No. 14/2011 (Thervoy Graamam Munnetra Nala Sangam Vs. Union of India & Ors. ).This Tribunal dealt with similar question of limitation and the view taken by this Tribunal is that the period of limitation cannot be extended by the Tribunal. We have also dealt with identical question in Appeal No. 24/2012. We find it difficult to deviate from our earlier opinion in this context. Considering the fact that pursuing litigations before the State Appellate Authority as well as the Karnataka High Court were not before the wrong forum, we find no substantial reason to allow exclusion of the period spent in the said litigations.
For the reasons discussed herein above, the applications and the appeals are dismissed.