Nature Club Of Rajasthan (NGO) vs Union Of India And Ors

As a common question is involved in all these Miscellaneous Applications as to whether this Tribunal has the jurisdiction for condonation of delay in an appeal which is filed beyond 90 days in view of the proviso to Section 16 of the National Green Tribunal Act 2010 that they were heard together and are being decided by this common order.

Relevant Facts:

(1). Appeal No. 29/2017 Nature Club of Rajasthan Vs. Union of India - the challenge made by the Appellant in this Appeal and the primary relief sought from the Tribunal is to quash and set aside the Environment Clearance (EC) granted to the lessee. The environment clearance (Annexure A-2) was granted to respondent No. 6 on 19th April, 2017. The Appeal was filed before the Tribunal on 15th September, 2017 and along with it the Appellant had also filed a Miscellaneous Application No. 426/2017 for condonation of delay in filing the Appeal. The Appeal in the instant case has been filed after 149 days from passing of the impugned order of Environment Clearance. It is to be noted that the said application is vague and does not contain full particulars and any explanation so as to justify the delay. Even the amount of delay, in total number of days, has not been given in the application.

(2). Appeal No. 30/2017 Nature Club of Rajasthan Vs. Union of India - the challenge made by the Appellant in this Appeal and the primary relief sought from the Tribunal is to quash set aside the Environment Clearance (EC) granted to the lessee. The environment clearance (Annexure A-2) was granted to respondent No. 6 on 8th June, 2016. The Appeal was filed before the Tribunal on 15th September, 2017 and along with it the Appellant had also filed a Miscellaneous Application No. 428/2017 for condonation of delay in filing the Appeal. The Appeal in the instant case has been filed after 464 days from passing of the impugned order of Environment Clearance. It is to be noted that the said application is vague and does not contain full particulars and any explanation so as to justify the delay. Even the total period of delay has not been mentioned in the application.

(3) Appeal No. 31/2017 Nature Club of Rajasthan Vs. Union of India - the challenge made by the Appellant in this Appeal and the primary relief sought from the Tribunal is to quash set aside the environment clearance (EC) granted to the lessee. The environment clearance (Annexure A-2) was granted to respondent No. 6 on 8th June, 2016. The Appeal was filed before the Tribunal on 15th September, 2017 and along with it the Appellant had also filed a Miscellaneous Application No. 430/2017 for condonation of delay in filing the Appeal. The Appeal in the instant case has been filed after 464 days from passing of the impugned order of environment clearance. It is to be noted that the said application is vague and does not contain full particulars and any explanation so as to justify the delay. Even the amount of delay in total number of days, has not been given in the application.

(4) Appeal No. 32/2017 Nature Club of Rajasthan Vs. Union of India - the challenge made by the Appellant in this Appeal and the primary relief sought from the Tribunal is to quash set aside the Environment Clearance (EC) granted to the lessee. The Environment Clearance (Annexure A-2) was granted to respondent No. 6 on 8th June, 2016. The Appeal was filed before the Tribunal on 15th September, 2017 and along with it the Appellant had also filed a Miscellaneous Application No. 432/2017 for condonation of delay in filing the Appeal. The Appeal in the instant case has been filed after 464 days from passing of the impugned order of environment clearance. It is to be noted that the said application is vague and does not contain full particulars and any explanation so as to justify the delay. Even the amount of delay, in total number of days, has not been given in the application.

(5) Appeal No. 34/2017 Nature Club of Rajasthan Vs. Union of India - the challenge made by the Appellant in this Appeal and the primary relief sought from the Tribunal is to quash set aside the Environment Clearance (EC) grand to the lessee. The Environment Clearance (Annexure A-2) was granted to respondent No. 6 on 17th May, 2016. The Appeal was filed before the Tribunal on 3rd October, 2017 and along with it the Appellant had also filed a Miscellaneous Application No. 441/2017 for condonation of delay in filing the Appeal. The Appeal in the instant case has been filed after 504 days from passing of the impugned order of Environment Clearance. It is to be noted that the said application is vague and does not contain full particulars and any satisfactory explanation so as to justify the delay. Even the amount of delay, in total number of days, has not been given in the application.

After putting appearance on service of notices, the respondents have vehemently opposed these appeals on the ground of being time barred. It has been further submitted that these appeals ought not to have been entertained by the Tribunal for want of jurisdiction. It has also been submitted that the application for condonation of delay does not give any satisfactory explanation whatsoever. The learned counsels for respondents have submitted that power of the Tribunal under the Act of 2010 to condone the delay is only up to 90 days and not beyond it. Therefore, it has been prayed that the Miscellaneous Applications, as also the Appeals be dismissed and the interim order granted be vacated.

The Learned Counsel for the Appellant had sought time to prepare on question raised by respondent and it was on his request that the cases were posted for 31st October 2017. He has submitted that notices in these appeals have already been issued by the Tribunal and therefore, the appeals should be considered on merits. Further, he has submitted that earlier to these appeals the Appellant had filed an Original Application No. 91/2017. On 17th August, 2017 the Tribunal had permitted to withdraw the Original Application (91/2017) with liberty to file an Appeal. Accordingly, the Original Application was disposed as withdrawn with liberty as prayed. The Learned Counsel for the appellant has also submitted that the appellant has also challenged the policy of the State Government and has raised objections with regard to giving of lease for mining on agricultural land which is not permissible under law. Therefore, it has been submitted by the Counsel for applicant that in view of the aforesaid circumstances the delay in filing the Appeal deserves to be condoned and the matter be proceeded with on merits.

On the other hand, the Learned Counsel for the private respondents has emphatically submitted that the request to proceed with these Appeals on merits is contrary to the mandate of law. He has further submitted that as these appeals have been filed after the prescribed statutory limitation of 90 days, the Tribunal does not have the jurisdiction to condone the delay beyond the said period nor it can proceed with the matter on merits. The Learned Counsel for the respondents has heavily placed reliance on the judgments of larger bench of the National Green Tribunal, in the cases of Nikunj Developers Vs. State of Maharashtra & Anr. [2013 All India NGT Reporter page 40]; Sunil Kumar Samanta, M/s Samanta Engineering Works Vs. West Bengal PCB and Ors., [2014 All (I) NGT REPORTER (2) (DELHI) 250] and Aman Sethi Vs. State of Rajasthan and Ors. [Appeal No. 61 of 2013 decided on 7th May, 2015].

We have heard the Learned Counsel for the respective parties at length. As the objection raised by the Learned Counsel for the respondents relates to jurisdiction of this Tribunal because the appeals have been filed beyond the period of limitation prescribed by the National Green Tribunal Act 2010, we deem it appropriate to decide this issue before proceeding further.

The relevant provision is Section 16 of the National Green Tribunal Act 2010. The said provision reads as follows :

Tribunal to have appellate jurisdiction. -Any person aggrieved by,-

(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 33A 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 Act, 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, 2002 (18 of 2003), may, within a period of thirty days from the date 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.

A bare perusal of the aforesaid provision goes to show that any person invoking the Appellate jurisdiction of the Tribunal for being aggrieved by an order may file an appeal within the period of 30 days from the date on which the order or decision is communicated to him. Further, it has been provided that the Tribunal may, on its satisfaction that appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding 60 days. Therefore, it is amply clear that as the period of relaxation, on having found that there were sufficient cause for appellant, has been prescribed to the extent of 60 days, the total number of days in which the appeal can be filed before the Tribunal is 90 days. Beyond the said period no appeal can be filed before the Tribunal nor does the Tribunal has any discretion to condone the delay after the said period irrespective of any justified cause which prevented the appellant from filing the appeal within 90 days.

The issue involved herein is well settled and, therefore, the question raised is to be decided against the appellant.

The larger Bench of this Tribunal consisting of five members in the case of Nikunj Developers (supra) has held as under:

" 24. The use of negative words has an inbuilt element of „mandatory‟. The intent of legislation would be to necessarily implement those provisions as stated.

Introduction or alteration of words which would convert the mandatory into directory may not be permissible. Affirmative words stand at a weaker footing 8 than negative words for reading the provisions as „mandatory‟. It is possible that in some provision, the use of affirmative words may also be so limiting as to imply a negative. Once negative expression is evident upon specific or necessary implication, such provisions must be construed as mandatory. The legislative command must take precedence over equitable principle. The language of Section 16 of the NGT Act does not admit of any ambiguity, rather it is explicitly clear that the framers of law did not desire to vest the Tribunal with powers, specific or discretionary, of condoning the delay in excess of total period of 90 days. At this stage, we may also refer to Principle of Statutory Interpretation by Justice G.P. Singh, 13th Edition, where it is stated as under:

"(c) Use of negative words

Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. As stated by CRAWFORD: "Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience." As observed by SUBBARAO, J.: "Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative". Section 80 and Section 87-B of the Code of Civil Procedure, 1908; section 77 of the Railways Act, 1890; Section 15 of the Bombay Rent Act, 1947; section 213 of the Succession Act, 1925; section 5-A of the Prevention of Corruption Act, 1947; section 7 of the Stamp Act, 1899; section 108 of the Companies Act, 1965; section 20(1) of the Prevention of Food Adulteration Act, 1954; section 55 of the Wild Life Protection Act, 1972 (as amended in 1956); section 10A of Medical Council Act, 1965 (as amended in 1993) and similar other provisions have therefore, been construed as mandatory. A provision requiring „not less than three months‟ notice‟ is also for the same reason mandatory.

But the principle is not without exception. Section 256 of the Government of India, 1953, was construed by the Federal Court as directory though worded in the negative form. Directions related to solemnization of marriages though using negative words have been construed as directory in cases where the enactments in question did not provide for the consequence that the marriage in breach of those directions shall be invalid. Considerations of general inconvenience, which would have resulted in holding these enactments mandatory, appear to have outweighed the effect of the negative words in reaching the conclusion that they were in their true meaning merely director. An interesting example, 9 where negative words have been held to be directory, is furnished in the construction of section 25-F of the Industrial Dispute Act, 1947, where compliance of clause (c) has been held to be directory; although compliance of clauses (a) and (b) which are connected by the same negative words is understood as mandatory. These cases illustrate that the rule, that negative words are usually mandatory, is like any other rule subordinate to the context, and the object intended to be achieved by the particular requirement."

Similarly, in the case of Sunil Kumar Samanta (supra) a larger bench of this Tribunal, has followed its earlier judgment in the case of Nikunj (Supra) and relied upon para 19 of the said judgment which reads as under:

"19: From language of the above provision it is clear that the Tribunal loses jurisdiction to condone the delay of the delay is of more than 90 days. Every appeal has to be filed within 30 days from the date of communication of the order. That is, what an applicant is required to ensure before the appeal is heard on merits. However, the Tribunal has been vested with the jurisdiction to entertain the appeal which is filed after 30 days from the date of communication of an order. This power to condone the delay has a clear in-built limitation as it ceases to exist if the appeal is filed in excess of 60 days, beyond the prescribed period of limitation of 30 days from the date of communication of such order. To put it simply, once the period of 90 days lapses from the date of communication of the order, the Tribunal has no jurisdiction to condone the delay. The language of the provision is clear and explicit. It admits of no ambiguity and legislative intent that Tribunal should not and cannot condone the delay in excess of 90 days in all, is clear from the plain language of the provision."

Subsequently, in the case of Aman Sethi (supra) it has been held in para 8, as follows:

"8 ..... Following this dictum in the case of M/s. Krishna Stone Crusher v. Haryana State Pollution Control Board 2014 All India NGT Reporter (1) Delhi 42, the Bench reiterated that the Tribunal will have no jurisdiction to condone the delay at all if the appeal is filed beyond the period of 90 days. At this stage, we may also notice that the appeal preferred against the judgment of the Tribunal in the case of Sunil Kumar Samanta (supra) was dismissed by the Supreme Court as being without merit vide its order dated 21st November, 2014 passed in Civil Appeal No. 10 10009/2014 titled as Sunil Kumar Samanta v. West Bengal Pollution Control Board and Others, thus, giving finality to the judgment of the Tribunal."

For the aforesaid reasons and in light of the dictum laid down by larger benches of five members of this Tribunal, it leaves no room of doubt that beyond a period of 90 days the Tribunal does not have the power to condone the delay in filing appeal, however good the reason may be which prevented the appellant from filing the appeal. Furthermore, on expiry of 90 days an appeal cannot be entertained by the Tribunal as it is the mandate of the legislature incorporated in National Green Tribunal Act 2010, that Tribunal does not have power to allow an appeal to be filed in a period exceeding ninety days in all. It cannot proceed on merits of an appeal filed beyond 90 days.

In such a situation the arguments raised by the counsel for appellant that earlier notices were issued in this appeal have no substance. Even if the notices were issued by the Tribunal the application for condonation of delay was pending and the delay had not been condoned. On receipt of notices the respondents had appeared and they have raised objections on maintainability of the appeals due to delay in filing the same.

Therefore, the Tribunal had no option but to first consider and decide the question as to whether these appeals which have been admittedly filed beyond 90 days, can be entertained by the Tribunal and decided on merits. The other argument made by the Learned Counsel for appellant that it was by the order of the Tribunal on 17th August, 2017 in O.A. No. 91/2017 is also not tenable for the reason that in face of mandate of the statute the Tribunal could not have permitted filing of the appeal beyond 90 days. As a matter of fact a perusal of the earlier order passed by the Tribunal shows that it was on the request of the appellant, applicant in the said case, that he wishes to withdraw the Original Application No. 91/2017 and file the Appeal that the Tribunal had allowed the withdrawal. In such a situation it can not be said that by permitting the appellant to withdraw the Original Application, the Tribunal had permitted the appeals to be filed beyond the statutory period or the delay in filing all these appeals was condoned.

The inevitable conclusion, therefore, is that the Miscellaneous Applications (M.A. Nos. 426/2017, 428/2017, 430/2017, 432/2017 & 441/2017) for condonation of delay deserve to be dismissed as being without any substance. Consequently, the appeals (Appeal Nos. 29/2017, 30/2017, 31/2017, 32/2017 & 34/2017) also fail and the same cannot be entertained because of the delay beyond the prescribed statutory limit, as also for want of jurisdiction of the Tribunal. Therefore, interim order dated 17th August, 2017 stands vacated.

In view of the fact that the main appeals have been dismissed today, the Miscellaneous Application Nos. 465/2017 and 466/2017 accordingly stand dismissed.

There shall be no order as to costs.