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Judgment
This is an application for condonation of delay in filing Appeal No. 01/2016/Z against the Environmental Clearance (EC) granted by the MOEF & CC, the Respondent No. 1, in favour of the Respondent No. 3, beyond the period of thirty days as stipulated under Section 16 of the NGT Act, 2010.
It is stated that the date on which the EC was granted was 20.11.2015 and the appeal was filed on 18.02.2016 which is within 90 days from the date of grant of EC. As per Section 16 of the NGT Act, 2010, any person aggrieved inter alia by an order granting environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986, may prefer an appeal to the Tribunal within 30 days from the date of the order. However, if the Tribunal was satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, it could allow it to be filed within a further period not exceeding sixty days. It is submitted that the period of delay was within the limit of exercise of the Tribunal's discretionary power.
To invoke such power, the Applicant states that although the EC was granted to the Respondent No. 3 on 20.11.2015, the contents of the EC came to his knowledge only on 04.02.2016 through a reply received in response to an application under the Right to Information Act, 2010. It is stated that the EIA Notification, 2006 mandates communication of the contents of the Environmental Clearance to the public at large but, since this was not done and has still not been done, the application was within thirty days prescribed under Sec. 16 computed from 04.02.2016, i.e., the date on which he became aware of the contents of the EC.
The Applicant further submits that although he became aware of the EC having granted to the Respondent No. 3 on 06.01.2016 through a local newspaper but the news report did not contain the details of the EC and the Environmental conditions and safeguards. He, therefore, exercising due diligence, wrote to the MOEF & CC on 07.01.2016 pointing out that the EC was not in public domain as it was still not uploaded in the website of the Ministry.
For the reasons alluded to above, the Applicant states that the Appeal is within the period of limitation computed from 04.02.2016 when he came to the knowledge of the EC having been granted on 20.11.2015. Accordingly, it is submitted that those very reasons constituted sufficient cause which prevented the applicant from filing the Appeal within 30 days of the order granting the EC and prayed that the delay be condoned as it was within the outer limit of sixty days provided under the proviso to Section 16 of the NGT Act, 2010, for which delay could be condoned.
The application for condonation of delay was strongly contested by the Respondent No. 3. In their reply to the application it has been averred that immediately after they received the EC on 20th November, 2015, it was uploaded by them on the company's website, that they also undertook all measures to publish it in the local newspapers in furtherance of which the EC was published in two local newspapers, namely, Orissa Bhaskar and Darshan on 27th November, 2015, i.e., within seven days from the date of receipt of the EC. That apart, it is stated that various newspapers, both within and outside the State of Odisha, had reported of the company having received the EC on 20th November, 2015. It is thus contended that the claim of the Appellant that he was made aware of the EC being granted to the company only on 4th February, 2016, was false. This fact would, as per the Respondent No. 3, also be apparent from the letter dated 17th September, 2014 written to the MOEF by the Applicant requesting not to consider the application for EC filed by the company which would indicate that the applicant was always aware of the matter pertaining to the EC. It is thus urged that since admittedly the applicant came to know of the factum of grant of EC on 6th January, 2016 and the application was filed only on 18th February, 2016, i.e., after 43 days from 6th January, 2016, it was barred by limitation.
We have heard the Learned Counsel for the parties and have examined the documents and the pleadings. For the purpose of deciding the application for condonation of delay, the essential consideration would be the purpose for which the appeal has been filed.
On a perusal of Appeal No. 01/2016/EZ, we find that the main prayer made is for quashing the EC dated 20.11.2015 issued by the MOEF in favour of the Respondent No. 3. It would, therefore, be quite obvious that until the details of the EC are known to the applicant/appellant or for that matter, any other person, knowledge of various terms and conditions of the EC would be essential. The case of the applicant/appellant in the MA as also in the appeal is that he was completely unaware of the details of the EC granted to the project along with the environmental conditions and safeguards.
The MOEF has not come forward with any affidavit to state as to whether the EC had been put up on its website despite having given opportunity to do so. It can, therefore, be reasonably inferred that the MOEF had not uploaded the EC on its website. The necessity of placing the information in public domain has been mandated by the EIA Notification, 2006 as amended vide Notification dated 1.12.2009 by amending para 10 relating to post Environmental Clearance Monitoring as under :-
" IV. In para 10 relating to Post Environmental Clearance Monitoring :-
(a) The existing sub-para (i) shall be renumbered as sub-para (ii) and before sub-para (ii) as so re-numbered , the following sub-para shall be inserted namely;
"(i)(a) In respect of Category 'A' projects, it shall be mandatory for the project proponent to make public the environmental clearance granted for their project along with the environmental conditions and safeguards at their cost by prominently advertising it at least in two local newspapers of the district of State where the project is located and in addition, this shall also be displayed in the project proponent's website permanently. (b) In respect of Category 'B' projects, irrespective of its clearance by MOEF/SEIAA, the project proponent shall prominently advertise in the newspaper indicating that the project has been accorded environment clearance and the details of MOEF website where it is displayed. (c) The Ministry of Environment and Forests and State/Union Territory Level Environmental Impact Assessment Authorities (SEIAAs), as the case may be, shall also place the environmental clearance in the public domain on Government portal. (d) The copies of the environmental clearance shall be submitted by the project proponents to the Heads of local bodies, Panchayats and Municipal Bodies in addition to the relevant offices of the Government who in turn has to display the same for 30 days from the date of receipt."
(b) Existing sub-para (ii) shall be renumbered as sub-para (iii)."
The object of the above provision is obviously to enable the general public to be aware of the details of the EC and, if so advised, to file appropriate proceedings objecting to all or any of the terms and conditions. There is no denial of the fact that the applicant/appellant became aware of such details only on 4.2.2016 through a reply received in response to an application filed under the Right to Information Act, 2010. It is not denied that even as on date the contents of the EC have not been communicated to the public at large as required under the EIA Notification, 2006.
The contention of the respondent No. 3 that they had immediately uploaded the EC on their website and that within seven days it had been published in two local newspapers in Orissa, does not appear to be in keeping with the requirements of EIA Notification, 2006, as firstly, the website obviously did not contain the details of the EC and so was the case in respect of the two newspaper reports which have been filed as Annexures-A1 and A2. The assertion that the applicant/ appellant was aware of the EC details as he had been following up the matter with the Ministry by referring to letter dated 17.9.2014 written by the applicant/appellant to the MOEF also does not appear to be convincing.
For the aforesaid reasons, we are inclined to accept the explanation put forth by the applicant/appellant as being sufficient cause that prevented him from filing the appeal within the statutory period of 30 days under Sec. 16 of the NGT Act, 2010.
Since the applicant/appellant came to know of the details of the EC only on 4.2.2016, we hold that the requirement of Sec. 16 of the Act that an appeal may be preferred within the period of 30 days from the date on which the order or decision or direction or determination is communicated to him would stand fulfilled.
Even otherwise, assuming that the applicant/appellant was late in filing the appeal within 30 days, the very reason that he was unaware of the contents of the EC before 4.2.2016, would fall within the outer limit of further 60 days for which discretion has been vested in the Tribunal to condone.
Considering the facts and circumstances alluded to above, we are satisfied that even on the alternative contention, the applicant/appellant has made out sufficient cause that prevented him from filing the appeal within the period allowed.
For the reasons aforesaid, we allow the application and condone the delay in filing the appeal.
In the result, MA 333/2016/EZ stands allowed.
List the Appeal on 11.1.2017.