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Judgment
By this application the applicant-respondent, the project proponent in the main appeal seeks the review of our order dated 11th July, 2013 vide which the Tribunal had come to the conclusion that the above appeal had been filed within the period of limitation and was not barred by time and the objection taken by the applicant in regard to the appeal being barred by time was without substance and, thus, permitted the appeal to be heard on merits. The applicant seeks review of that order inter alia but primarily on the following grounds: -
a. The applicant has now produced on record, evidence by way of letters dated 19th July, 2013 written by the applicant to the Public Information Officer, National Informatics Centre, New Delhi and reply thereto dated 1st August, 2013, which evidence the applicant could not produce despite due diligence. This documentary evidence shows that the order granting Environmental Clearance (EC) dated 16th October, 2012 was uploaded on the website on 17th October, 2012 and the same was accessible to the public after uploading. Thus, the findings recorded in the judgment that the EC order could not be downloaded immediately after 17th October, 2012 is an error on the face of the record.
b. What has been recorded by the Tribunal in paragraphs 8, 9, 20 and 21 of the impugned order stated the case of the appellant which, in fact, was not even pleaded by the appellant. Furthermore, the judgment does not record the 'starting point' of the limitation and therefore, the judgment is liable to the reviewed by the Tribunal.
It is the case of the Respondent that since no fault has been attributed to the Ministry of Environment and Forests (MoEF), therefore, the judgment is liable to be reviewed.
The learned counsel appearing for the applicant has relied upon the judgments of the Hon'ble Supreme Court in the case of Board of Control for Cricket in India vs. Netaji Cricket Club (2005) 4 SCC 741, S.Nagaraj and Ors. vs. State of Karnataka and Anr. (1993) Supplementary 4 SCC 595, Lily Thomas etc. etc. vs. Union of India and Ors. (2000) 6 SCC 224 and Ramesh B. Desai & Ors. vs. Bipin Vadilal Mehta and Ors. (2006) 5 SCC 638 in support of his contentions and also to substantiate that the review application would be maintainable not only on discovery of new and important piece of evidence or where there exists an error apparent on the face of the record but also the same is necessitated on account of some mistake or for any other sufficient reason. It is also the contention that limitation cannot be decided on abstract principle of law divorced from the facts as in every case the starting point of the limitation has to be ascertained, which is entirely a question of fact.
To the contra, the submission of the learned counsel appearing for the non-applicant/appellant is that the order dated 11 th July, 2013 does not call for any review inasmuch as the same is in consonance with the facts pleaded and the record placed before the Tribunal. According to the non-applicants, the applicant has no bonafide or reasonable ground for not producing the alleged letters now sought to be produced at the initial hearing. Furthermore, in terms of the law stated by the Tribunal, every stakeholder has to comply with the complete set of events before the limitation can start running against the applicant.
As far as the principles of law stated by the Hon'ble Supreme Court of India in the judgments relied upon by the applicant are concerned, they can hardly be disputed but they have to be applied to the facts of a given case. At this juncture, it will be necessary for us to notice the facts of the case even at the cost of repetition. The EC was granted by the MoEF to the project proponent on 16th October, 2012 and it is claimed that it was uploaded on the website on 17th October, 2012. The appeal had been filed on 30th January, 2013. The case of the appellant/non-applicant, as pleaded even earlier, was that it is mandatory for the project proponent, SEIAA or the MoEF, as the case may be, to upload a copy of the EC on their respective websites. The project proponent or the MPPCB did not upload a copy of the order on their websites. The appellant could download the EC order from the website of the MoEF only in the second week of January, 2013. Also no copy of the EC was made available to the affected villagers and the stakeholders either by communication or through newspaper publication. The project proponent had violated the conditions of the order of the EC and such violation gave a continuous cause of action in favour of the appellant and there was no delay at all in filing of the appeal. The appellant had moved an application on 4th - 5th December, 2012 seeking a copy of the EIA Report and other documents, including the order of EC. This letter was responded to by the MoEF in the second week of January, 2013 stating that information would be provided after digitization. However, it was only with the assistance of a lawyer that subsequently they could download the EC from the website of the MoEF and file the appeal. The applicant also pleads that the order of EC was not published in the local newspapers nor communicated to the local Government officers. Thus, according to the applicant, the limitation would start running only from the second week of January, 2013, thus, and the appeal was filed on 30th January, 2013 within the period of limitation. The project proponent has not discharged its obligations and in fact, is in complete breach of the terms and conditions of the order of EC as well as that of the Environmental Clearance Notification of 2006. This is not disputed even at this stage.
The Tribunal while taking a pragmatic and practical approach, in consonance with the provisions of the Environment Protection Act, 1986 had condoned the delay for the reason that the order of EC, even if uploaded on 17th October, 2013, was inaccessible to the public at large. For this purpose, the Tribunal had relied upon the letter dated 26th December, 2012 which was written in response to the letter of the applicant dated 5th December, 2012 demanding the documents, in which it was said that the file was being sent for digitalization and the soft copy of the project file could be furnished once the digitalization was completed, which was expected to happen soon. As noticed in the main order, this letter was authored by the same person who had sworn the affidavit before the Tribunal stating that the order was uploaded on 17th October, 2012. It was for this officer to explain the ambiguity resulting from the letter dated 26th December, 2012 written by him and the affidavit sworn by him before the Tribunal. This onus was required to be discharged by the MoEF. The plea of limitation cannot be construed on inferences inasmuch as it gives a right of objection to one and debars the remedy of the other. In the present case, the party primarily taking the objection of limitation admittedly did not discharge its obligation in accordance with law and in fact did nothing like putting the EC order on its website, publishing it in the newspapers, giving it to the officers of the local government authorities for its accessibility to the public at large and more particularly to the persons belonging from the area where project is located. It was for the MoEF to show that the order was unequivocally accessible to the public at large and could actually be downloaded after 17th October, 2012. An order being put in the public domain would pre-require its accessibility to the public at large, which in the present case has certainly not been satisfied.
There are various attendant circumstances which would support the view that we have taken in holding that the application was not barred by time. Firstly, at the relevant point of time there was no record before the Tribunal to believe that the EC Order was downloadable or was accessible to the public at large immediately on and after 17th October, 2012. Secondly, even if it is so assumed, as now is sought to be pleaded by the applicant on the strength of some documents, even then it does not stand to logic as to why the appellant/non-applicant would have taken recourse to the provisions of the Right to Information Act, 2005 (RTI Act) and would have received a copy thereof thereafter. Furthermore, it was brought on record before the Tribunal in a number of cases that the website of the MoEF was defective and downloading of EC Orders or other necessary documents was not possible. It has come on record that the website of MoEF was not properly functioning and was set right only in June, 2012 in view of the letter dated 5th June, 2012 of the Director, MoEF (Judgment in Save Mon Region Foundation). Further it has also come on record, vide letter dated 26th December, 2012 of the Director, MoEF that it was doubtful whether the website of MoEF was effectively accessible. If it was so downloadable and was in the public domain, all that the MoEF was to do was to write to the applicant that all the documents, at least the EC was available on the website, which, admittedly, it never did, including in its letter dated 26th December, 2012. This would necessarily imply that before 26th December, 2012, the EC order was not in public domain as required by law. Another interesting feature of the letter dated 26th December, 2012 of Director, MoEF, is that while informing the applicant regarding retrieving the file and sending it for digitization, without informing that copy of the EC is available on the website, a copy of the letter was marked to AIG (FC), MoEF, with a request to furnish information related to Forest Clearance of the project directly to the applicant. The law as stated by the Tribunal in its judgment in the case of Save Mon Region v. Union of India and Ors. (2013) 1 All India NGT Reporter Page 1, that the MoEF is not only required to put the EC order on its website which should be immediately downloadable but also to put it on a public notice board in its Board in its premises/regional offices where it becomes easily accessible to public at large without hindrance. This order has to be displayed along with the environmental conditions and safeguards and proper record thereof has to be made. The law requires complete compliance with the conditions of EC order as well as the contents of the Notification of 2006 in that regard. The cumulative effect of all these factors would be that the Court cannot draw an adverse inference against the appellant/non-applicant, particularly when both the MoEF and the project proponent failed to discharge their statutory obligations in regard to the uploading, display and putting the order granting EC in the public domain as held by the Hon'ble Supreme Court in the case of Ramesh P. Desai (supra) that the limitation should have a starting point which will be a matter of fact. In other words, it cannot be a presumptive data. Once the MoEF and the project proponent have failed to discharge their onus in accordance with law, the Tribunal cannot draw presumptive starting point of limitation against the applicant. It is these two stakeholders who have raised the point of limitation, thus, the onus to prove the same lay on them and not on appellant/non-applicant. The starting point of limitation must have reference to certain facts. In light of the facts afore-noticed and in the main judgment, we do not have any hesitation in concluding that the limitation would start reckoning in the second week of January, 2013 and the appeal having been filed on 30th January, 2013, the question of the appeal being barred by time cannot be accepted. In the present case, we do not feel that any such assumption has been drawn by the Tribunal while recording its order dated 11th July, 2013. On the contrary, the Tribunal has taken a pragmatic view within the prevalent principles in relation to the law of limitation.
In terms of Section 16 of the NGT Act, an appeal could be filed within 30 days plus further period of 60 days upon showing a sufficient cause. Review is a wide power vested in the Courts or Tribunals. It is intended to correct the error or a mistake apparent on the face of the record but for which the Court would not have passed the order. If such error is persisted with or its perpetration shall result in miscarriage of justice then alone the courts would interfere in the matter of review. The Court has to take care of ensuring it is founded on the desire prevailing to prevent irretrievable injustice being done by a Court. In other words, it is primarily to prevent miscarriage of justice or injustice being done but at the same time the Courts or Tribunals have to ensure that equally no injustice is done to either side. (Refer: Lily Thomas vs. Union of India, (2000) 6 SCC 224). The documents which are sought to be produced now, firstly do not show that the conclusion drawn by the Tribunal is based on incorrect facts. Secondly, even the letter dated 1st August, 2013 of Mr. Swarup Dutta, CPIO (RTI) & Scientist 'D, NIC Hq. states as under:
"As per the data available in the database, the mentioned EC letter was uploaded on 17.10.2012. Since, the site is hosted in the Data Centre, it is available for public access and the permitted contents are available for download after uploading the same."
This is merely a statement and does not show in definite terms that the order dated 16th October, 2012 was downloadable after 17th October, 2012 from the website of the MoEF which, as afore noticed, was not entirely functional.
The heavy reliance placed by the Ld. Counsel appearing for the review applicant upon the letter dated 1st August 2013 is misplaced. This letter re-affirms what has been averred by the applicant at the time of hearing of the application for condonation of delay. It does not create any new case or a case which has been made out upon discovery of new evidence which the applicant could not produce on the earlier occasion despite exercise of due diligence. Even if this document was there before us at the time of hearing of the application, in all probability the applicant herein would not have been able to persuade us to necessarily take a view different than the one we have already taken by condoning the delay. The Supreme Court in the case of Lily Thomas (supra) had clearly enunciated this principle that a review application cannot be considered favourably merely on the ground that a different view was probable and could have been taken by the Court or Tribunal. It further stated that the power of review can be exercised for correction of mistake and not to substitute a view.
Furthermore the letter dated 1st August, 2013 does not place the case of the review applicant on a better footing than what has been projected before us on the earlier occasion. In accordance with the language of 'Regulation 10' of the Notification of 2006 it is not merely the intimation of EC or any specific part thereof which has to be put on the website of the MoEF and/or the project proponent but the same should essentially be uploaded with all 'environmental conditions and safeguards' on the website. Placement of this information in its entirety in the public domain is mandatory and not optional at the desire of the project proponent. Mandatory conditions cannot be construed as directory and they must be applied with its rigors under the law.
The letter dated 1st August, 2013 besides being vague and uncertain, also restricts the downloading of the order dated 16th October, 2012. It does say that the letter is available for public access but could be downloaded only to the extent of permitted contents and after the same was uploaded. The expression 'permitted contents' clearly violates the spirit of 'Regulation 10' of the Notification of 2006. As aforenoted, an order of EC has to be uploaded with all the environmental conditions and safeguards and not to a limited extent and the same should be downloadable instantly. This obligation is placed both upon the project proponent and the MoEF. From the records before us, it is clear that both of them have failed to discharge their onus as required. It may also be noticed here that the adverse inference that the Tribunal had drawn in the main judgment was with reference to the affidavit filed on behalf of the MoEF and the letter dated 26th October, 2012 authored by the same officer of the MoEF. MoEF has not filed any review application, in fact on the contrary they are not even present despite service at the time of hearing of this application. It is not for the review applicant to justify or clarify the acts and deeds of MoEF. Even for these reasons we are unable to persuade ourselves to accept the contention of the review applicant.
The matters in issue in the present appeal raise substantial questions relating to environment and they require to be examined on merits. All that the Tribunal has done is to hold that the appeal is within time and should be heard on merits. The objections raised by the applicant in its review petition are void of any substance and merit and, therefore, deserve to be rejected.
Consequently, we dismiss the review application, however, leaving the parties to bear their own costs.