Puducherry Environment Protection Association vs Union Of India And Ors

The applicant has challenged the Environmental Clearance (EC) dated 24.6.2014 granted by the second respondent - State Environment Impact Assessment Authority (SEIAA) in favour of the fifth respondent - project proponent for the proposed expansion of Pharmaceutical Multi-Product Facility with change in production capacity from 3384.74 TPA (25 products) to 3376.40 TPA (53 products) at Plot No.A1/A, A1/B, A1/C, A2/B, A2/D, SIPCOT Industrial Estate, Kudikadu Village, Cuddalore District as well as the amendment order issued by the second respondent dated 24.11.2015, amending plot numbers and survey numbers and also for a direction against the third respondent - Tamil Nadu Pollution Control Board to close the fifth respondent unit for wilful violation of EIA Notification, 2006, Environment (Protection) Act, 1986 (EP Act), Water (Prevention and Control of Pollution) Act, 1974 (Water Act), Air (Prevention and Control of Pollution) Act, 1981 (Air Act) and Hazardous Waste Management Rules, 1989 by illegally expanding production, direct the first respondent - MoEF & CC to initiate prosecution against the fifth respondent under Section 15 of the EP Act, apart from directing the fifth respondent to pay compensation for the environmental harm caused by the illegal activities.

It is the case of the applicant that the fifth respondent has originally obtained Environmental Clearance (EC) from the first respondent - MoEF & CC on 24.10.2000 for expansion of Bulk Drug Unit at Cuddalore and even before "Consent" has been obtained from the Tamil Nadu Pollution Control Board (Board), started manufacture of different items of drug. However, in the EC granted by the first respondent - MoEF & CC on 24.10.2000, the fifth respondent was permitted for expansion of 13 products, subject to specific and general conditions. After obtaining the said EC, the fifth respondent has applied to the Board for "Consent" to produce larger number of products and the Board has also granted "Consent" for manufacturing larger number of products than the number of products stated in the EC. Therefore, the fifth respondent has violated the EIA Notification, 1994 and the conditions of EC granted in the year 2000 with the active participation and connivance of the Board. According to the applicant, "Consent" can be granted by the Board only in respect of the products for which EC was granted.

The applicant has given various dates in the application to show that originally the fifth respondent has obtained "Consent to Operate" by the Board on 8.7.1991 both under the Air Act and Water Act for the purpose of manufacturing of the products viz., Ranitidine HCL 5 T/M, N. Methyl, S. Methyl - 2 Nitro Ethane = 7 T/M. Subsequently, the fifth respondent has obtained another "Consent" order from the Board on 27.11.1991 both under the Air Act and Water Act for manufacture of Renitidine HCL = 5 TPM, Atenolol = 2 MTPM, Analgin = 100 MTPM, Dichlofenac Sodium = 3 MTPM, N-Methyl - S - Methyl - 2 Nitro Ethane = 7 MTPM, P Hydroxy Acetophenone = 5 MTPM, and P - Hydroxyaceto Phenyl Acetamide = 5 MTPM. The fifth respondent has obtained EC from the first respondent as per the EIA Notification 1994 on 24.10.2000 for manufacture of 13 products viz, Ranitidine HCL - 20 TPM, Ibuprofen - 100 TPM, Atenolal - 5 TPM, Dichlofenac Sodium - 3 TPM, Salmetrol - 0.25 TPM, Niztidine - 2 TPM, S- Ibuprofen - 10 TPM, D-Napraxen - 5 TPM, 3.5 Dihydroxy Benzoic Acid - 1 TPM, Ciproflaxin - 10 TPM, Phenatoxypyline - 10 TPM, Hydrolazine HCL - 2 TPM and Alphatocophenyl acetate - 25 TPM for total 193.25 TPM.

The fifth respondent has obtained "Consent to Operate" from the Board on 20.3.2002 both under Air Act and Water Act based on its application dated 7.1.1994 for 18 products viz., Ranitidine Hydrochloride - 20 T/M, Ibuprofen - 100 T/M Atenolol 5 T/M, Dichlofenac Sodium - 3 T/M, Salmetrol - 0.25 T/M, Niztidine - 2 T/M, S (S) - Ibuprofen - 10 T/M, D - Napraxen 5 TPM 3,5 Dihydrozybenzonic Acid - 1 T/M, Ciproflaxin - 10 T/M, Phenatoxypyline - 10 T/M, Hydrolazine Hydrochloride - 2 T/M, Alpha Tocophenyl Acetate - 25 T/M, Analgin 100 TPM, N-Methyl, S - Methyl 1-2, Nitro Ethane - 35 T/M, P-Hydro Xyaceto Phenone - 5 T/M, RI - II Cystofur - 10 T/M and P-Hydroxyaceto Phenyl acetamide - 5 T/M.

Therefore, according to the applicant, when EC was granted by the first respondent on 24.10.2000 in respect of 13 products, obtaining "Consent" by the fifth respondent from the Board on 20.3.2002 for 18 products, is totally illegal and the same has been done with the connivance of the Board. Again the applicant has stated that the fifth respondent has applied for "Consent" to the Board on 19.5.2009 both under Air Act and Water Act and "Consent" was granted on 13.7.2011 in respect of 25 products viz., Ranitidine Hcl 240 TPM, Nizatidine 24 TPM Ketoprofen - 24 T/M, Aldehyde - 1500 T/M, Isredipine 0.54 TPM, Chlorophenesin - 144 T/M, CKE 36 TPM, Lortadine 25 TPM, Sevalamer Hydrochloride - 20 T/M, Hydroxypropy; Methyl Cellulose Phthalate (HPMCP) - 130 T/M, Clopidogrel Bisulphite = 1.2 T/M, Clopidogrel Napsylate - 1.2 T/M, Venlafaxine Hydrochloride - 60 - T/M, Olanzapine - 3 T/M, Indapamide - 10 T/M, VX - 950 - 24 T/M, Sumatriptan Succinate - 2 T/M, Phexphynadine - 25 T/M, Meprobamate - 2 T/M, Cycloserine - 2 T/M, Colesevelam HCL - 1 T/M, Sevelorner Carbonate - 4 T/M, Tenofovir DF - 0.8 T/M, Doxycline - 25 T/M, Gaba Pentine - 1080 TPM. Therefore, it is the further case of the applicant that when the EC granted by the first respondent dated 24.10.2000 was only for 13 products by illegally obtaining "Consent" from the Board both under Air and Water Act, the fifth respondent has been increasing the production capacity at the first instance at 18 and thereafter as 25, as enumerated above. It is the case of the applicant that the fifth respondent has made application on 20.7.2012 to the Board both under Air Act Water Act seeking for "Consent to Establish" for the construction of new building at Location ''B'' and modification in the existing building at location ''C'' which was said to have been granted by the Board on 17.9.2012.

The applicant has raised a question as to how the Board is entitled to give "Consent" for new building and modification of existing building without obtaining EC for such expansion activities. Therefore, according to the applicant, all the above "Consent" orders granted by the Board are illegal.

It is applicant's further case that the impugned EC granted by the second respondent - SEIAA dated 24.6.2014 is based on a proposal for expansion with change in production capacity of the fifth respondent dated 16.5.2013 permitting manufacturing of 53 products viz., Ranitidine CL - 50 TPM, Ketoprofen - 24 TPM, Aldehyde - 1700 TPM, Isredipine - 1 TPM, Chlorophenesin - 144 TPM, CKE - 36 TPM, Nizatidine - 6 TPM, Lortadine 2 TPM, Sevalamer - Hcl - 40 TPM, Rosigiltazone - 1 TPM, Clopidogrel Bisulphite - 1.2 TPM, Clopidogrel Napsylate - 1.2 TPM, Venlafaxine Hcl - 60 TPM, Olanzapine - 1 TPM, Indapamide - 10 TPM, VX - 950 - 24 TPM, Sumatriptan Succinate - 2 TPM, Phexphynadine - 25 TPM, Meprobamate - 2 TPM, Cycloserine - 2 TPM, Colesevalem Hcl - 50 TPM, Sevelomer Carbonate - 50 TPM, Tenofovir DF - 10 TPM, Doxycline - 2 TPM, Gabapentine - 150 TPM, Aloigliptone - 1 TPM, Nabumutone - 10 TPM, Moxiflaxacin - 5 TPM, CD-6051 (A-49) - 10 TPM, Cinacalcet - 1 TPM, Leviteractam - 50 TPM, Dextromethorphan - 10 TPM, Loxoprofen - 50 TPM, Celecoxib - 20 TPM, Pantaprazole - 10- TPM, Pitavastatin - 1 TPM, Pregabalin - 50 TPM, Dexlanzaprazole - 1 TPM, Benzarone - 2 TPM, Montelukas sodium - 1 TPM, Rosuvastatin - 1 TPM, Ibuprofen - 400 TPM, Lanthanum Carbonate - 10 TPM, Lurasidone - 1 TPM, Dabigatran - 3 TPM, Sapropterine - 1 TPM, Roflumilast - 1 TPM, Riveroxaban - 1 TPM, Apreptant - 1 TPM, Olmestartat - 1 TPM, Ibuprofen sodium - 50 TPM, Methyl thionium chloride - 250- TPM and Carisoprodol - 40 TPM.

Therefore, the fifth respondent has violated the EC granted by the first respondent dated 24.10.2000. Manufacturing of additional products by the fifth respondent based on the "Consent" by the Board is not permissible and the same is illegal. In fact, for such expansion activities, public hearing has not been conducted.

It is the further case of the applicant that the second respondent - SEIAA has no jurisdiction even to consider the application of the fifth respondent for expansion of their activities, since SIPCOT, Cuddalore has been categorised by the CPCB as "Critically Polluted Area" (CPA) along with large number of such cluster in the entire country. It was based on Comprehensive Environmental Pollution Index (CEPI), the MoEF & CC has imposed a moratorium on 13.1.2010 identifying 43 cluster units in India as CPA and Cuddalore was at Serial No.13. The said moratorium was lifted on 15.2.2011. The Government of India has clarified that as the general condition to EIA Notification, 2006 stipulates that any project or activity specified in Category B will be treated as Category ''A'' if it is located within 10 km from the boundary of (i) protected areas notified under the Wild Life (Protection) Act 1972; (ii) Critically Polluted Area as notified by CPCB from time to time; (iii) notified eco-sensitive area; and (iv) inter-state and international boundaries. According to the applicant, by virtue of the categorisation of Cuddalore as CPA, even though in normal circumstance manufacturing may be covered under "B" category, it has to be treated as Ä" category with the result it is only the first respondent - MoEF & CC which is the authority competent to issue EC and therefore EC granted by the second respondent - SEIAA under the impugned order is null and void. According to the applicant, Cuddalore has always been in the list of CPA.

To substantiate his case, the applicant has stated that in respect of one Asian Paints Penta Division which is also situated in CPA, Cuddalore it was only MoEF & CC which has granted EC on 24.2.2014. Likewise, it is also stated that in respect of another unit viz., All Synthetic Organic Chemicals Industry which is also within 10 km of CPA, Cuddalore, the proposal was treated as "A" category and appraisal was done by EAC and EC was granted on 30.1.2015.

While so, in respect of the fifth respondent, the impugned EC has been granted by the second respondent - SEIAA especially when the unit is situated in CPA, Cuddalore and therefore the EC is null and void and the same is without jurisdiction. The applicant has also stated about the order of the Tribunal in V. SRINIVASAN VS. UNION OF INDIA wherein SEIAA granted EC for MSW facility in Pallikaranai situated within 10 km of Guindy National Park which came to be set aside with a direction to MoEF & CC to consider.

The applicant has also highlighted apart from the jurisdictional issue that when once EC granted on 24.10.2000 was in respect of 13 products, with combined production capacity of 193.25 TPM, the Board has chosen to grant under Air and Water Act for 25 products with production capacity of 3384.74 TPM and subsequently 53 products with the total capacity of 3376.40 TPM. A reference to the "Consent" given by the Board in the impugned EC itself makes it clear that the fifth respondent unit has illegally expanded its industry and violated conditions of EC as contemplated under the EIA Notification, 2006. The applicant has also relied upon a data report of the fifth respondent unit relating to the years 2010 - 2015 to show huge investment made by the fifth respondent - project proponent on the building, plant and machineries. He has also relied upon statistical information relating to the production capacity of the fifth respondent, which according to the applicant, is a clear deviation, as it is shown in the audited statement relating to the years 2007 - 2010 and its illegal expansion without prior EC is not permissible in law It is also stated that the quantum of waste which has been generated by the unit has not been accounted with the mass balance. The accredited Consultant should have conducted EIA. However, EIA has not been furnished to the applicant when he raised the same under RTI Act.

With the above factual matrix, the applicant, while challenging the impugned EC has raised various legal points which includes that as long as Cuddalore is a CPA, as per the Notification of the Government of India, even if the proposed unit is covered under "B" category, appraisal must be done only by EAC by treating it as Ä" category project and therefore the impugned EC is null and void. Further, even SEIAA has not applied its mind apart from SEAC and there was no public hearing conducted and on that score also the impugned EC becomes invalid. On the basis of invalid EC and "Consent" given by the Board in connivance, the fifth respondent has no legal authority to proceed with its activities. When EIA and the further clarification make it clear that EC must be given by MoEF & CC, by no stretch of imagination the second respondent - SEIAA will acquire competency to grant EC. The applicant has also stated that one, Mr. Selvavinayagam has filed Appeal Nos.67 and 68 of 2015 before the learned Appellate Authority against the "Consent" granted by the Board and the applicant has also filed an application to implead in the said appeal on 19.1.2016. It is stated that thereafter the applicant association visited the District Environmental Engineer, Cuddalore on 10.2.1016 to file RTI and requested information about "Consent" orders issued by the Board to the industry. It is the applicant's case that it was during this meeting the applicant association came to know that the industry has obtained EC from the second respondent under EIA Notification, 2006. Immediately thereafter the applicant tried to source from public domain and according to the applicant, the entire EC was not available in the website and the website of SEIAA was found defunct. Thereafter, he made an application under RTI on 16.2.2016 which was received by SEIAA by its letter dated 29.2.2016 but despatched on 9.3.2016 and received by the applicant on 10.3.2016 The applicant has sent another letter on 15.3.2016 and there was no reply within 30 days. It was on 15.3.2015 a representation was made to MoEF & CC and other officers regarding refusal of information by SEIAA and on 16.3.2016 a mail was sent to Member Secretary and Chairman, SEIAA asking for a copy of EC. On 21.3.2016 a reply was received from the Chairman, SEIAA that steps have been taken to bring the website on line. The applicant has made a complaint on 21.3.2016 followed by a reminder on 27.3.2016 that the SEIAA website was defunct. It was on 31.3.2016 a letter of SEIAA dated 28.3.2016 was received by the applicant, directing to pay a sum of Rs.1096/- for furnishing the documents asked for on 16.2.2016 and fee was paid on 31.3.2016 and after reminders on 28.3.2016, 30.3.2016, 4.4.2016 and 7.4.2016, it was ultimately on 16.4.2016 the applicant was granted copy of EC as well as Form - I even though other documents like EIA has not been provided. It is because of the delay caused by SEIAA, as reflected under RTI communication, the application has been ultimately filed before this Tribunal on 25.4.2016 and according to the applicant association, due to the above reason the application is filed within the time stipulated under EIA Notification, 2006.

The fifth respondent - project proponent in its reply has raised a preliminary objection regarding maintainability of the application. According to the said respondent, the impugned order of EC is appealable as per Section 16(h) of the National Green Tribunal Act, 2010 (NGT Act). Therefore, the present application filed under Section 14 of the NGT Act is contrary to law The EC granted by the second respondent - SEIAA is in accordance with EIA Notification, 2006 as notified by the Government of India as per the powers conferred under the Environment (Protection) Act, 1986 and therefore the EC assumes a statutory significance and such orders are presumed to be valid unless the contrary is proved and there is no substantial question of environment involved in this case. Mere contention that the second respondent has no competency to pass the impugned order will not take away the procedure laid down under Section 16 of the NGT Act, 2010 in filing appeal. It is also stated that only realising the same the applicant has filed Appeal No.123 of 2016 against the subsequent EC granted by the second respondent - SEIAA in favour of the fifth respondent wherein exactly the same averments which have been made in this application, are made and therefore the applicant is aware of the provisions of the NGT Act, 2010 and the filing of this application is an abuse of process of law.

It is the further case of the fifth respondent that even on the ground of limitation, the application is liable to be rejected. By virtue of granting clearance a right has been accrued on the fifth respondent and anybody who seeks to challenge in order to take away that right is expected to move the Tribunal within the time prescribed under the NGT Act. The impugned orders of EC are dated 24.6.2014 and 24.11.2015 and the application is filed in April 2016 and therefore the same is against Section 14(3) and proviso to Section 16 of the NGT Act, 2010. That apart, the fifth respondent has also raised the issue of locus standi of the applicant association. The applicant has not shown any proof of his residency in and around the fifth respondent unit. Even otherwise, the fifth respondent unit has been in existence for decades, without any complaint from any one. The applicant, who challenges the procedural violation in granting EC, has no vested right without any proof of violation of any substantial right relating to environment. The applicant, which is Puducherry Environment Protection Association, concerning about Puducherry territory, has failed to establish its interest in Cuddalore and therefore the application is filed only with an ill-motive and to harass the fifth respondent. The applicant having filed an impleading petition before the Appellate Authority in respect of the appeal against the same issue cannot file this application.

While dealing with the merits of the case, it is stated by the fifth respondent that the said industry has been functioning from 1991, complying with all environmental requirements with adequate safeguards and it is a ZLD unit, causing no pollution whatsoever. The industry is functioning with prior approval from the Government of India, including EC and "Consent" from the Board. It is also stated that the fifth respondent has been involved in the manufacture of bulk drugs for pharma company and also actively involved in Research and Development agenda for the larger interest of the society. The products prepared by the fifth respondent are crucial and are the drugs and medicines required for important health problems such as tuberculosis and severe other ailments. It is also stated that the fifth respondent is the only manufacturer of bulk drug for treatment of tuberculosis. The fifth respondent industry is highly reputed and its credit have been acknowledged by the Government of India by providing Certificate of Appreciation. The fifth respondent industry has also been certified as ZLD unit following environmental norms. The attitude of the applicant in attempting to close down the fifth respondent is without realising important requirement of drug to treat several patients from severe ailments. There are large number of workers employed in the unit which is around 800. By attempting to close down the unit, the concept of 'sustainable development' can not be achieved.

It is stated by the fifth respondent that the industry was in existence before EIA Notification, 2006 and in fact under the provisions of the EIA Notification, 1994 EC was obtained on 24.10.2000 and after EIA Notification, 2006, EC was obtained under the said Notification also for which the second respondent - SEIAA has jurisdiction to issue EC for change in product mix along with change in quantity of number of products. Considering the necessity, in the year 2009 the fifth respondent has applied for "Consent" to manufacture additional products as product mix assuring that the same would not affect the trade effluents generated and air emissions would be maintained within the consented quality and quantity and the same was apprised by the Expert Body of the Board on the basis of the EC dated 24.10.2000 and the circular of MoEF & CC dated 14.12.2006 and "Consent" was granted in 2011 on the assurance that the fifth respondent will maintain the quantity of trade effluents generated and air emission within the consented quality and quantity. Such "Consent" granted by the Board is an appealable order. It is also stated by the fifth respondent that the applicant has chosen to state certain quantity erroneously stating as TPM (Tonne per month) instead of TPA (Tonnes per annum) and the fifth respondent has never raised the quantum of 193.52 TPM from the date of EC from the year 2000. The comments made by the applicant is denied as false. The fifth respondent has made application to SEIAA for expansion of its activities and such unit is situated in the notified industrial estate and it is the "B" category project as per EIA Notification, 2006. It was referred to SEIAA for recommendation and finally after several meetings SEIAA has granted "Consent". It is also stated that the first respondent - MoEF & CC has also inspected the fifth respondent unit and gave compliance report in 2014 stating that the unit is in compliance of the EC. In the said report the first respondent has clearly acknowledged that the fifth respondent has applied before the first respondent for clearance. If really the project falls under category "A" any application sent to SEIAA will be forwarded to MoEF & CC. However, in this case, the SEIAA has granted clearance which is statutory in nature and deemed to be legal until set aside in accordance with law and cannot be held as void ab initio. It is also stated that in the event of this Tribunal coming to a conclusion that the first respondent is the competent authority, the fifth respondent would always obey the order and apply to MoEF & CC for EC. The fifth respondent has also referred about the order passed by this Tribunal on 24.2.2014 in Appeal No.64 of 2013 wherein having found that the project proponent has complied with all environmental norms, the Tribunal held in public interest and social needs that EC originally granted by SEIAA based on adhoc guidelines can be continued for a period of six months with a direction to the project proponent to make application to obtain EC based on the guidelines issued by MoEF & CC. The other allegations raised by the applicant are denied.

In the additional reply filed by the fifth respondent it is stated that the role of the fifth respondent in manufacturing the said drug is critical and even internationally the fifth respondent is one of the few manufacturers to manufacture cycloserine which is used for treatment of tuberculosis. The fifth respondent unit has been inspected and certified by the World Health Organisation (WHO) with Good Manufacturing Practices. The fifth respondent's Cuddalore unit manufacturing practices' have been found acceptable and approved by the United States Food and Drug Administration Department, Health Products Regulatory Authority of Ireland, the European Directorate for the quality of medicines and healthcare. It is also stated that the fifth respondent has been connected with on-line monitoring system of the Board and monthly compliance is being reported and as on date it has installed sophisticated and modern effluent and sewage treatment system by investing huge sums of money and attained ZLD. The impugned ECs are only for the expansion activities in furtherance of the original EC granted on 24.10.2000. It is also stated that as per the terms of general conditions of the impugned EC issued under EIA Notification, 2006, the fifth respondent immediately communicated EC to various authorities as required, apart from issuing public notice about the grant of EC by SEIAA stating that the copies of EC will be available with Board and in the website of SEIAA by public notice advertisement dated 29.6.2014 in "The Hindu" as well as "Dinakaran" newspaper and therefore the conditions contemplated under the EC have been complied with and by virtue of the paper publication the entire public have been put to notice about the issuance of EC by SEIAA. The explanation stated by the applicant as if he has visited DEE's office on 10.2.2016 is only to get over the period of limitation, apart from reiterating that the application as such is not maintainable. The reasons given for the purpose of getting over the period of limitation are not at all acceptable. Even though the applicant has chosen to state that several members of the applicant are living in and around the industry, there are no particulars or proof. The applicant has not explained the reason for delay from the public notice issued on 29.6.2014 till filing of RTI on 16.2.2016 and it is after nearly two years period the applicant states that he has been wandering here and there for getting information. It is also stated that the copy of EC was available with the Board apart from the Block Development Office and the applicant could have access to the same from the said office. The applicant has chosen to state that the SEIAA website was not functional for the past four or five months which means that till November, 2015, the SEIAA website was not available. The averment of the applicant that the website of SEIAA was found to be defunct is not sustainable as it is not the case of the applicant that the same was not functional after issuance of EC for a period of one year. The fifth respondent has also stated that under Section 14 (3) of the NGT Act, 2010 the application is clearly barred by limitation taking note of the cause of action first arose

Even though the other respondents have not filed reply, the learned counsel appearing for SEIAA Mrs. E. Saraswathy has produced the website particulars of SEIAA during the relevant point of time.

Mr.T. Mohan, learned counsel appearing for the applicant, while meeting the claim of the project proponent in respect of maintainability of the application on the point of limitation and want of cause of action, has focussed upon the issue that when EC was granted to the project proponent on 24.10.2000 for 13 products, it is not known as to how, while granting the impugned EC on 24.6.2014 on the basis of the claim of expansion the product has increased to 53, taking the originally permitted product as 25 and therefore, according to him, there is prima facie illegality in the impugned EC and that will be violation of EIA Notification, 2006. He would insist that when Cuddalore has been categorised as CPA by the Central Pollution Control Board, by virtue of the EIA Notification, 2006, even if in normal course of time such product will be covered as "B" category, it should be treated as "A" category and MoEF & CC alone is the authority competent to grant EC and in the present case, the second respondent - SEIAA has no jurisdiction to grant the impugned EC. Therefore, according to him, the impugned EC is void ab initio. When it is void ab initio and is a nullity in the eye of law, there is no question of limitation. He has also relied upon the contents of Form - I submitted by the project proponent for expansion wherein it has deliberately suppressed the fact that Cuddalore is in CPA and therefore it amounts to 'fraud' having been committed by the project proponent and 'fraud' vitiates other follow up action and in that way the impugned EC is to be set aside as nullity and vitiated by 'fraud'. It is his further submission that there is no communication of the impugned EC by putting the EC in public domain by SEIAA, as narrated, while dealing with the facts of the case. It was only after the enormous efforts taken by the applicant they were able to get the copy of the impugned EC and therefore there is no delay. He also submits that when the stakeholders have failed to perform their duty of placing the impugned EC in public domain, such failure cannot be thrusted on the applicant for the purpose of throwing out the application without going into the merits and on the technicality of limitation.

To substantiate his contention that Cuddalore continues to be a CPA, he would rely upon various official memorandums issued by MoEF & CC and he has also stated that as early as 2015 there has been a communication that Cuddalore continues to be CPA and therefore the proposal of the project proponent dated 16.5.2013 for expansion made by way of application in Form - I is vitiated by the deliberate concealment of material fact and EIA Notification, 2006 makes it very clear in Para 8 (vi) that any deliberate concealment will not give any right on the parties. He has also compared that during the relevant point of time two other units viz., M/s. Asian Paints. Cuddalore, has applied for EC, by making such application to MoEF & CC. Similarly, in respect of another unit viz., Ms. Clariant Chemicals Ltd., Cuddalore, when application was made to SEIAA, the same was forwarded to EAC for making the impact study and ultimately it was MoEF & CC which has issued EC in those cases. Therefore, according to him, there are instances to show that Cuddalore continues to be a CPA as known to SEIAA as well as MoEF & CC and in such circumstances SEIAA ought not have usurped the powers of MoEF & C which is illegal. He would submit that EC to be granted by MoEF & CC is different from that of SEIAA. In cases where MoEF & CC is the authority to grant EC, it is the Expert Appraisal Committee (EAC) which studies the impact assessment consisting of various committees specialised in separate fields. On the other hand, in respect of SEIAA, there is only one consolidated committee called SEAC and the rigourness of scrutiny by EAC will be lacking in SEAC especially in respect of the CPA like that of Cuddalore.

To substantiate his contention that order passed by an authority who has no jurisdiction for passing such order are to be tainted as void and such order has no legs to stand and is ultra vires, he has relied upon the judgment of the Supreme Court in DLF UNIVERSAL LTD VS. COUNTRY PLANNING DEPT (2010) 14 SCC 1. Even judicial orders which are passed by the court which are incompetent are nullity, as held by the Supreme Court in SARUP SINGH VS. UNION OF INDIA (2011) 11 SCC 198. Any void order cannot create any legal right or obligation as it was held in SHIVSHANKAR GURGAR VS. DILIP reported in AIR 2014 SC 1182. He has also relied upon various judgments in respect of jurisdictional issues including DWARKA PRASAD AGARWAL (DIED) BY LRs VS. B.D. AGARWAL, AIR 2003 SC 2686 and SUSHIL KUMAR MEHTA VS. GOBIND RAM BOHRA (DEAD) THROUGH HIS LRS, (1990) 1 SCC 193. As far as the locus standi is concerned, he has also relied upon the judgment of the Rajasthan High Court in PROF. K.P. SHARMA VS. STATE OF RAJASTHAN to substantiate the above said contention. While meeting the allegation of the respondent, particularly the project proponent that the applicant association has no locus standi, the learned counsel would submit that apart from the fact that Cuddalore and Puducherry are within the primary area, law is well settled in that in cases of public interest the issue of locus can supercede any decision on merit affecting larger interest of the people. He has relied upon the judgment in VIMAL BHAI VS. MOEF by a decision of this Tribunal dated 14.12.2011 apart from another decision in M.C. MEHTA VS.UNIVERSITY GRANTS COMMISSION (Original Application No.12 of 2014 dated 17.7.2014). To substantiate his contention that suppression of material facts amounts to 'fraud' he has relied upon various judgments including BHAURAO DAGDU PARALKAR VS. STATE OF MAHARASHTRA, 2005 (7) SCC 605. He has also taken us to various documents to show that the project proponent has played 'fraud' on SEIAA and SEIAA has actually passed the impugned EC in collusion. He would correlate that when originally there was only 13 products for which EC was granted in 2000, it is not known as to how the Board has given 'consent' for 18 products. Likewise, the number of products have consistently increased in various 'consent' orders given by the Board which are totally opposed to the original EC granted by MoEF & CC in the year 2000 and therefore according to him even the ''consent'' orders are illegal and by taking advantage of the ''consent'' order, the project proponent has started manufacturing different products which is against the very concept of EIA Notification, 2006 and according to him, it is significant to note that under the impugned EC, the SEIAA has mentioned about the ''consent'' orders issued by the Board which have no legs to stand and on that score also the impugned EC has to be nullified. He would submit that by virtue of the consistent 'fraud' committed by the fifth respondent - project proponent the operation of its unit becomes illegal and because of that illegality there was a recent accident in the unit in 2015 where solvents leak resulted in explosion in the newly expanded facility. That apart, the unit has been operating without valid ''consent'' for a long period and even when the leak of gas has occurred in 2011 there was no valid ''consent'' with the project proponent. Therefore, he has submitted that locus standi issue cannot be raised in public interest litigation and that by virtue of ''fraud'' the EC is to be treated as nullity. In any event, the applicant has prayed for a declaration that EC is a nullity since nullity is to be declared by a competent court.

Per contra, it is the contention of Mr V. Prakash, learned Senior Counsel appearing for the fifth respondent - project proponent that the unit was established in SIPCOT area in 1984 and came into existence in 1991 and at that time neither EIA Notification 1994 nor EIA Notification 2006 were in existence. EC was granted originally on 24.10.2000 to the project proponent under EIA Notification, 1994. While it is true that there was a ''consent'' order issued by the Board on 20.3.2002, according to the learned Senior Counsel, when the validity or otherwise of the ''consent'' order, which has to be challenged before the Appellate Authority, has not been questioned anywhere, the Tribunal cannot go into that His contention is that in 2014 when there was an expansion by way of the impugned EC granted, there is nothing on record to show that the project proponent had any intention to disobey the EIA Notification, 2006. He would submit that whether the project proponent approaches SEIAA or MoEF & CC, it is of no significance since before any of the authorities, the project proponent has to undergo the ordeal as per law. Simply because one authority is rigorous in scrutiny he would submit that there is no distinction between MoEF & CC and SEIAA in making appraisal, as long as the concept of appraisal is well defined in EIA Notification, 2006. He has taken us to various provisions of NGT Act and in the light of the object of the Act fairly contended that while the status of locus is not a very important issue in this case and therefore in effect the act of the applicant in questioning the EC on the ground of public interest cannot be denied, he has explained as per the provisions of the NGT Act, 2010 the basic distinction between Section 14 and Section 15. While dealing with Section 14 of the NGT Act which deals with the settlement of disputes, locus may not be a relevant factor and it remains the fact that under the said provision the applicant is expected to be diligent in prosecuting the issue and that is the reason why the makers of law have specifically used significant words ''cause of action for such dispute first arose''. Therefore, according to him, even though the object articulated as per Section 14 of the NGT Act imposing broad jurisdiction, that is with the specific purpose that such right must be exercised within the period of limitation from the date of cause of action first arose. He has also stated that on the facts of the present case, when the impugned EC is dated 24.6.2014 and the same has been published in the newspaper by the project proponent, giving website address so as to make any person to have easy access to the EC, the filing of the present application on 25.4.2016 is totally against Section 14(3) of the NGT Act which has to be scrupulously followed. He has also compared the words under Sections 14 and 15 of the NGT Act to show that on harmonious construction of both the provisions one can find that while Section 14 is restrictive in respect of limitation, Section 15 is extended to a larger period of time probably due to the reason that the effect of environmental pollution may be realised only in course of time. Under Section 15 of the NGT Act even though it has to be liberally interpreted, it is more of tortuous liability in which event the person claiming damages must show injury caused to any person or anybody's property. In the present case, there is no specific plea of injury to any person or damage to property by the conduct of the project proponent and therefore even under Section 15 of the Act, the applicant cannot insist this Tribunal to grant compensation. He has also referred to Section 16 of the NGT Act wherein the above section uses the word ''person aggrieved'' and therefore any person challenges the order by way of appeal must prove that he is an aggrieved person which is not available under Section 14 or Section 15 of the Act and therefore under Section 16 of the Act appeal can be filed by only a person who is a party to the proceeding who receives the communication and therefore for the parties to the proceedings the appeal remedy is available under Section 16 of the Act, provided the person is aggrieved and if he is not the party in the proceeding, he will have a right under Section 15 of the Act provided he proves cause of action first arose and from the said date which is the time prescribed under Section 14(3) of the Act he invokes jurisdiction of the Tribunal. In any event, a person coming under Section 14 of the Act must prove that there is a breach of civil right and on the facts of the present case, there is no whisper of any breach of any civil right of any person and therefore even on that ground the application under Section 14 of the NGT Act is not maintainable. When different periods of limitation is prescribed under Sections 14, 15 and 16 of the NGT Act, jurisdiction based on limitation is a relevant fact to be considered . The present application having been filed especially under Section 18(1) of the NGT Act, 2010 there is no question of any compensation. He would also submit that ''fraud'' is a question of fact and it has to be pleaded and proved and even when ''fraud'' is alleged a person has to pass through the period of limitation. He has also questioned the bona fide of the applicant who is already having the post of Secretary and he himself has stated that he has visited the District Environmental Engineer but it is not known as to why he has not chosen to file the application strictly in accordance with Section 14(3) of the NGT Act, 2010 and therefore the plea made by the applicant about the so called earnest steps taken has to be rejected as bogus. When the applicant seeks to invoke the jurisdiction of this Tribunal, it is his duty to prove that he has come within the period of limitation. Simply saying that he has visited various offices is not a sufficient reason under Section14(3) of the NGT Act, 2010. He also submits that whether the area is declared as CPA or not is not by any legal implication or statutory notification and therefore there cannot be any presumption that every project proponent must know whether the area is a Critically Polluted Area or not and therefore there is no question of any suppression on the part of the project proponent.

He has also controverted the arguments of the learned counsel appearing for the applicant that void order has no limitation. He wondered as to why the applicant still wants to challenge the order if it has to be ignored. Therefore, according to the learned Senior Counsel, when any person seeks the indulgence of this Tribunal to declare an order as null and void especially in a specialised Tribunal like that of NGT, he has to prove that he has strictly adhered to the period of limitation contemplated under the Act. In fact in Form No.I the project proponent has specially stated the area of Cuddalore. If really Cuddalore is a CPA, as declared by the Central Pollution Control Board, it was the duty of SEIAA not to entertain the application or direct the project proponent to approach MoEF & CC and for such fault, the project proponent cannot be penalised. There is absolutely nothing to show that there has been any collusion between the project proponent and the SEIAA. Any order passed by the statutory authority is presumed to be valid, unless and until it is set aside by a competent court of law and there is no negative presumption or presumption against the validity of the order passed by a statutory authority. It is not as if SEIAA is a total stranger to show that it is without any jurisdiction. EIA Notification, 2006 specifically confers jurisdiction to SEIAA in respect of ''B'' category units and when admittedly the unit of the project proponent is of ''B'' category, one cannot say that SEIAA is a stranger based on communication issued by the Central Pollution Control Board about which people are not expected to know. Though ignorance of law is no excuse, it is not automatic in respect of every communication. Therefore, there is no deliberate misrepresentation or fraud on the part of the project proponent. He has also submitted that the project proponent has been declared ZLD unit and the monitoring is being done online throughout and the unit of the project proponent is the manufacturer of medicines for tuberculosis and one of the very few manufacturers in the entire world and at the instance of the applicant if the unit of the project proponent is going to be disturbed, the same cannot be termed at any stretch of imagination as ''sustainable development''. To substantiate his contention that there is no presumption that every communication to be known to everybody, he has relied upon the judgment of the Supreme Court in AIR (1979) SC 21. He has also relied upon another judgment of the Supreme Court in M. MEENAKSHI V. METADIN AGARWAL (2006) 7 SCC 470 regarding the void order to the effect that even void order has to be declared so by the competent court. He has also contended that at no place in the pleading the applicant has made any averment about pollution or defiance of environmental norms or standards by the project proponent. He has also submitted that the moratorium imposed by the Government of India was subsequently lifted on 15.2.2011 and the Office Memorandum issued by the Government of India dated 17.9.2013 is in respect of moratorium regarding Cuddalore. Whereas the application was made by the project proponent on 16.5.2013 and therefore in the absence of any evidence to show that there has been deliberate suppression on the part of the project proponent, it cannot be said to be vitiated by 'fraud' and therefore on the factual matrix, the applicant having filed application beyond the period of limitation prescribed under Section 14(3) of the NGT Act, 2010, is liable to be dismissed.

The learned counsel appearing for SEIAA has produced a communication slip to show the website of SEIAA which was opened and the EC was in fact put in public domain. According to her, even otherwise when the project proponent has given a public notice, giving the website particulars, the applicant has not chosen to state anywhere as to what steps he has taken immediately on seeing the publication in the newspaper for the purpose of opening the website. Any EC will not be kept open in the website for ever and even EIA Notification, 2006 prescribed a time limit within which the EC is to be kept in public domain and therefore according to her there is absolutely no fault on the part of the second respondent - SEIAA in passing the impugned order and the applicant has to necessarily prove that he has approached the Tribunal within the time stipulated under Section 14(3) of the NGT Act, 2010. 26. After hearing the learned counsel appearing for the parties, referring to the pleadings and voluminous documents filed by both the parties, particularly the applicant as well as project proponent, the following points arise for consideration by this Tribunal:

(1) Whether the impugned EC issued by the second respondent dated 24.6.2014 and the consequential amendment dated 24.11.2015 are to be declared as null and void on the point of jurisdiction and on 'fraud' stated to have been committed by the project proponent.

(2) Whether the application is maintainable on the ground of limitation?

Even though both the respective counsel have also argued on the merits of the case, as the main focus is on the approval of SEIAA in passing the impugned order and the period of limitation, we have focussed on the above said issue of maintainability alone.

Issue Nos.1 and 2: Issue No.2 is consequential to our decision on Issue No.1 and therefore we have taken both the issues 1 and 2 together for our consideration.

DISCUSSION AND DECISION: 29. The main focus of contention as raised by the learned counsel appearing for the applicant in this case is that the project of the fifth respondent - project proponent is situated within 10 km of the boundary of CPA notified by the Central Pollution Control Board from time to time. If the project is situated within the Critically Polluted Area, as per the EIA Notification, 2006, in its general condition as incorporated from 1.12.2009, any such project which is situated within 10 km from CPA even if it is specified in category 'B', will be appraised at the Central level treating it as category A' project. The said General Condition which is incorporated below the Schedule to EIA Notification, 2006 reads as follows:

General Condition (GC):

Any project or activity specified in Category 'B' will be appraised at the Central Level as Category 'A', if located in whole or in part within 5km from the boundary of : (i) Protected Areas notified under the Wild Life (Protection) Act, 1972 (53 of 1972); (ii) Critically Polluted areas as notified by the Central Pollution Control Board constituted under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) from time to time; (iii) Eco-sensitive areas as notified under sub-section(2) of Section 3 of the Environment (Protection) Act, 1986 and (iv) inter State Boundaries and international boundaries; provided that for River Valley Projects specified in item 1(c ), Thermal Power Plants specified in item 1(d), Industrial Estates /parks/complexes/ areas, Export Processing Zones (EPZ), Special Economic Zones (SEZs), biotech parks, leather complexes specified in item 7 (c) and common hazardous waste treatment, storage and disposal facilities(TSDFs) specified in item 7(d), the appraisal shall be made at Central level even if located within 10km.

Provided further that the requirement regarding distance of 5 km or 10 km, as the case may be, of the inter-State boundaries can be reduced or completely done away with by an agreement between the respective States or the Union Territories sharing the common boundary in case the activity does not fall within 5 km or 10 km, as the case may be of the areas mentioned at item (i), (ii), and (iii) above.

This is also clarified by an Official Memorandum issued by the MoEF & CC dated 28.4.2011 which is as follows:

No.J.11013/5/2010-IA-II(I)

Government of India

Ministry of Environment and Forests

Paryavaran Bhavan

CGO Complex, Lodi Road

New Delhi - 110 003

Dated 28th April, 2011

Office Memorandum

Sub: Consideration of projects in respect of critically polluted areas. Ministry of Environment and Forests had imposed a moratorium on consideration of projects for environment clearance to be located in critically polluted areas/industrial clusters identified by the Central Pollution Control Board. Based on the review of the Action Plans for the 43 identified critically polluted areas, moratorium has now been lifted in 20 clusters vide Ministry's Office Memorandums of even No. dated 26th October, 2010, 15th February, 2011 and 31st March, 2011. In the remaining 23 identified critically polluted areas/clusters, it has been decided to extend the moratorium further upto 30th September, 2011.

Ministry has been receiving queries regarding consideration of projects for environmental clearance in terms of the EIA Notification, 2006 particularly on the applicability of general condition in respect of projects to be located in these clusters from which moratorium on consideration of projects has been lifted.

It may be noted that the EIA Notification, 2006, the General Condition stipulates that "any project or activity specified in Category 'B' will be treated as Category 'A' if it is located in whole or in part within 10 kms. From the boundary of : (i) protected areas notified under the Wildlife (Protection) Act, 1972, (ii) critically polluted areas as notified by the Central Pollution Control Board from time to time, (iii) notified eco-sensitive areas, (iv) inter-State boundaries and International boundaries".

In view of the above, this is to clarify that the projects to be located within 10 kms. from the latest list of the critically polluted areas as identified by the Central Pollution Control Board would attract the General condition of EIA Notification, 2006 and therefore, such projects would need to be treated as category 'A' projects.

This issues with the approval of the Competent Authority.''

On the facts of this case, it is clear that the project proponent has applied for the proposed expansion of its Pharmaceutical Multi Product Facility in Form - I as per EIA Notification, 2006 on 31.1.2013 from 3360.74 TPM of bulk drugs and intermediates in the existing area of 6.52 ha to 3345.5 TPM of bulk drugs and intermediates with the total number of products after expansion of 53 in the expanded area of 7.29 ha and this being a project covered under 5(f) of the schedule to the EIA Notification, 2006 is a 'B' category unit sine it is located in an industrial area viz., SIPCOT Industrial Complex, Kudikadu, Cuddalore. If it is situated within 10 km of CPA, the expansion proposal itself has to be appraised as 'A' category with the result it is the MoEF & CC which is the authority and not SEIAA which is the normal authority for granting the EC in respect of 'B' category projects.

Now we have to see as to what is Critically Polluted Area and who is authorised to declare the area as CPA. The Central Pollution Control Board (CPCB) was established as per the provisions of the Water (Prevention and Control of Pollution) Act, 1974 with the main objective of maintaining the wholesomeness of water (surface and ground water) in India. Likewise, the CPCB was empowered under the provisions of Air (Prevention and Control of Pollution) Act, 1981 also. The purview of the CPCB was widened further by the provisions of other Acts and Rules to cover compliance of other environmental components. Under Section 16 of the Water Act, the CPCB has a specific function to advise the Central Government of any matter concerning the prevention and control of water pollution. As per Section 16(2) of the Water Act, the CPCB has the following functions:

Functions of Central Board. - (1) ....................

(2) In particular and without prejudice to the generality of the foregoing function, the Central Board may perform all or any of the following functions, namely: -

(a) advise the Central Government or any matter concerning the prevention and control of water pollution;

(b) co-ordinate the activities of the State Boards and resolve disputes among them;

(c) provide technical assistance and guidance to the State Boards, carryout and sponsor investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution;

(d) plan and organise the training of persons engaged or to be engaged in programmes for the prevention, control or abatement of water pollution on such terms and conditions as the Central Board may specify;

(e) organise through mass media a comprehensive programme regarding the prevention and control of water pollution;

(ee) perform such of the functions of any State Board as may be specified in an order made under sub-section (2) of Section 18;

(f) collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information connected therewith;

(g) lay down, modify or annul, in consultation with the State Government concerned, the standards for a stream or well;

Provided that different standards may be laid down for the same stream or well or for different streams or wells, having regard to the quality of water, flow characteristics of the stream or well and the nature of the use of the water in such stream or well or streams or wells;

(h) plan and cause to be executed a nation-wide programme for the prevention, control or abatement of water pollution;

(i) perform such other functions as may be prescribed.''

Therefore, it is clear that under Section 16(2)(a) the CPCB has a function to advise the Central Government of any matter concerning the prevention and control of water pollution.

Likewise, such advisory power is available under the Air Act also to the CPCB. Anthropogenitic activities are major sources of environmental pollution. In recent times, the problem of pollution and its adverse ecological impacts have been aggravated by an increase in the scale of residential, industrial and other development activities. This has led to a realisation that there is a need to formulate an objective method to quantify the environmental conditions of such polluted areas. The criteria for comprehensive environmental assessment of industrial clusters was formulated by the CPCB working under MoEF & CC in December, 2009. Taking note of various ecological risk assessment and environmental impact assessment used to determine the impact of developmental projects and various techniques of Geographic Information System (GIS) it was felt that there is a need for adopting spatially explicit modelling approaches to handle the dynamics imposed by the environment. Various hazardous instances happened throughout the world due to industrial pollution and several measures have been developed for the assessment of environment consequences. Towards the said process, a Comprehensive Environmental Pollution Index (CEPI) came to be evolved as a focus in environmental system analysis based on aggregated measurement of environment performance of sustainability. CEPI offers decision makers, in this case - MoEF & CC, the condensed environmental information for performance monitoring policy progress evaluation, benchmarking comparisons and decision making. CEPI reduces the number of indicators by aggregating them to make the information easily accessible. Hence it is otherwise difficult to evaluate the environmental performance on the ground of so many environmental indicators. Therefore, CEPI which is found out by the CPCB based on study made of theoretical level, operational level and that is the indicator to the decision makers for having a performance comparison decision making and policy making. The criteria found out by the CPCB for arriving at CEPI and the methodology have been formulated in detail in the year 2009. The CPCB, in collaboration with the IIT Delhi carried out comprehensive environmental assessment of 88 permanent industrial clusters in India during 2009- 2010 based on CEPI criteria. The CEPI criteria is having a rationale number between 0 - 100 and based on the quality of environment the following algorithm of source pathway and receptor the CPCB gave mark in the form of code to the said 88 industrial clusters. It was found that out of 88 prominent industrial clusters, 43 industrial clusters in 16 States in India were having CEPI score 70 and above and that was identified as Critically Polluted Industrial Clusters. Those clusters numbering 32 having CEPI score of 60 to 70 were categorised as severely polluted area. This comprehensive environmental assessment in respect of 88 prominent industrial clusters made by CPCB in the year 2009 - 2010 was handed over to Government of India by the CPCB as advisory to the Central Government, based on which the MoEF & CC had imposed a temporary moratorium by the Official Memorandum dated 13.1.2010 and in the said moratorium Serial Nos.1 to 43 viz., 43 industrial clusters were declared as Critically Polluted Area. Cuddalore (Tamil Nadu) which had CEPI Score - 77.45 which is above 70, was also categorised as CPA. Under the moratorium dated 13.1.2010 by virtue of the powers conferred under the Environment (Protection) Act, 1986, the Central Government, for the purpose of protecting and improving the quality of environment, including the restriction of area in which any industry, operation or process shall not be carried out or shall be carried out subject to certain safeguards, has imposed temporary restriction to developmental projects in such clusters/area by imposing the procedure to be followed which is as follows:

''4.1.1 The developmental projects from industrial clusters with CEPI score above 70 (as listed at Serial No.1 to 43 of the Annexure) received for grant of environmental clearance in terms of the provisions of EIA Notification, 2006 (including projects for Stage -I clearance i.e. scoping (TORs), which are presently in pipeline for environmental clearance of which would be received hereafter shall be returned to the project proponents.

4.1.2 This restriction on consideration of projects from critically polluted clusters/areas above will apply for a period of 8 months upto August, 2010 during which time the Central Pollution Control Board along with the respective State Pollution Control Board/UT Pollution Control Committees will finalise a time bound action plan for improving the environmental quality in these identified clusters/areas. The situation will be reviewed thereafter and further instructions issued accordingly; provided that projects relating to renewal of mining lease without any increase in production and/or lease area which are already in operation in these clusters will continue to be appraised in accordance with the procedure prescribed under EIA Notification, 2006 and decision taken on merits; and provided further that the projects of public interest, such as projects of national importance, pollution control, deference and security, with prior approval of the Competent Authority, MEF/SEIAA for category Á'& 'B' respectively, on a case to case basis, will continue to be appraised in accordance with the procedure prescribed under EIA Notification, 2006 and decision taken on merits.

4.2 The developmental projects from industrial clusters with CEPI score between 60 - 70 (as listed at Serial No.44 to 75 of the Annexure), which are in the pipeline or are received for grant of environmental clearance in terms of the provisions of EIA Notification, 2006 (including projects for stage-I clearance i.e. scoping (TORs) will be considered following the procedure outlined in this Ministry's earlier circular No.J -11013/18/2009-IA.II (I) dated 25th August 2009 relating to 'proposals for environment clearance for the projects located in the critically polluted areas as identified by the Central Pollution Control Board" which is available on the website of the Ministry www.envfor.nic.in.

In the eventuality of any dispute regarding the location of any project within the critically polluted area or otherwise, a reference will be made to CPCB and based on their advice a view will be taken on such projects.

Cuddalore was at Serial No 16. The above said moratorium was imposed upto 31.8.2010. During the period of moratorium, the State Pollution Control Board/Pollution Control Committee have prepared time bound action plan for finalisation by the CPCB. However, the action plans were not finalised within the prescribed period of moratorium viz., 31.8..2010 and therefore the Government of India has extended the period of moratorium upto 31.10.2010. On finalisation of the action plans, the Government of India has decided to lift the moratorium in respect of five industrial clusters viz., (1) Tarapur (Maharashtra) (2) Pattancherru - Bollaram (Andhra Pradesh), (3) Coimbatore (Tamil Nadu), (4) Vapi (Gujarat) (5) Mandi-Govindgarh (Punjab) based on the recommendations of the CPCB and in respect of the remaining 38 industrial clusters which includes Cuddalore, the moratorium was further extended upto 31.3.2011 by the Official Memorandum dated 26.10.2010 as it is seen in the Official Memorandum dated 15.2.2011 of the MoEF & CC. The CPCB in the communication dated 15.2.2011 has informed the Ministry that the revised action plans submitted by the State Pollution Control Boards have been reviewed and approved by the CPCB and action plan has been initiated in respect of the industrial area viz., (1) Agra (Uttar Pradesh), (2) Aurangabad (Maharashtra), (3)Bhavnagar (Gujarat), (4) Cuddalore (Tamil Nadu), (5) Dombivalli (Maharashtra), (6) Ludhiana (Punjab), (7) Navi Mumbai (Maharashtra) and (8) Varanasi - Mirzapur (Uttar Pradesh). Based on the said recommendation, the Government of India has lifted moratorium in respect of the above said industrial area subject to various conditions. For the proper appreciation of the above said fact, it is relevant to extract the following paragraph of the Official Memorandum of MoEF & CC dated 15.2.2011:

''1. Now the Central Pollution Control Board (CPCB) vide their communication dated 15.02.2011 have informed this Ministry that the relevant revised action plans submitted by the respective SPCBs/ UTPCCs have been reviewed and approved by CPCB and that the implementation of action plans has been initiated in respect of the industrial areas of (i) Agra (Uttar Pradesh), (ii) Aurangabad (Maharashtra) (iii) Bhavnagar (Gujarat) (iv) Cuddalore (Tamil Nadu) (v) Dombivalli (Maharashtra) (vi) Ludhiana (Punjab) (vii) Navi Mumbai (Maharashtra) and (viii) Varanasi-Mirzapur (Uttar Pradesh)

In view of the recommendation of the CPCB, it has been decided to lift the moratorium on consideration of projects for environmental clearance in respect of projects to be located in the above mentioned eight clusters /areas namely; (i) Agra (Uttar Pradesh), (ii) Aurangabad (Maharashtra) (iii) Bhavnagar (Gujarat) (iv) Cuddalore (Tamil Nadu) (v) Dombivalli (Maharashtra) (vi) Ludhiana (Punjab) (vii) Navi Mumbai (Maharashtra) and (viii) Varanasi-Mirzapur (Uttar Pradesh) subject to the following conditions:

(i) CPCB and the respective SPCBs will immediately put the approved action plans on their respective websites.

(ii) SPCBs will monitor the implementation of the action plans as per their schedule and ensure that there is no slippage either in terms of timeframe or the activities to be completed relating to the action plan. The report will be submitted to CPCB.

(iii) CPCB will also develop a monitoring mechanism and put it in place within 30 days and monitor the implementation of these action plans, area-wise and also carryout random checks on the environmental parameters for their quality. The results will be put on their website.

(iv) The respective SPCBs/UTPCCs will monitor the pollution levels in these areas on regular basis and if at any stage it is observed that the levels are increasing, it will be immediately brought to the notice of CPCB as well as MoEF and in such a situation the moratorium will be re-imposed.

(v) Independent third party periodic monitoring on the implementation of action plan will be supported. The results of the monitoring so carried out will be hosted on the website and also communicated to CPCB.

(vi) Industrial cluster/area wise Committee comprising various stakeholders inter-alia representatives of locals and experts in the relevant field will be set up to oversee the implementation of the action plans.

(vii) The EACs/ SEACs will take extra precaution during appraisal of projects to be located in these areas and prescribe the requisite stringent safeguard measures, so that the environmental quality is not deteriorated further in these areas''.

Therefore, it is clear that it is based on the CEPI index which is being monitored in accordance with the action plan of the State Pollution Control Board, the CPCB approved for lifting of moratorium in respect of the industrial clusters which have been declared in 2009 - 2010 as CPA. It is abundantly clear by the Official Memorandum dated 15.2.2011 that CEPI is not a permanent entity but it will vary from time to time based on the recommendation of the CPCB and in our considered view, one cannot assume that because in the year 2009 - 2010 CEPI score was above 70 in respect of Cuddalore that should continue to be a CPA for ever. As it is elicited above, in the document of the CPCB, the CEPI Index as well as recommendation are ever changing process. The reason which is abundantly available in the record is that the areas identified as CPA are to be closely monitored by the State Pollution Control Board - specialised action for the purpose of abating pollution and when once such actions are implemented with the approval of the CPCB, the CPCB can recommend the Government of India by virtue of the powers under Section 16(2)(a) of the Water Act and corresponding provisions of Air Act based on which the Government of India takes a policy decision of lifting the moratorium. Therefore, by Official Memorandum dated 15.2.2011, the moratorium imposed on Cuddalore (Tamil Nadu) has been lifted by the Government of India with a direction to the CPCB and State Pollution Control Board to approve the action plan in the website and make a continuous monitoring mechanism, including the monitoring of pollution level and EAC and SEAC to take extra precaution during the appraisal of the projects to be located in these areas and prescribe the requisite stringent safeguard measure so that environmental quality is not deteriorated further.

The question then arose is as to whether in respect of the industrial clusters for which moratorium has been lifted, the general condition will continue to apply to them It was in those circumstances, the MoEF & CC in the Official Memorandum dated 26.4.2011 has clarified that even in respect of the industrial clusters wherein the moratorium has been lifted the project would continue to be treated as category 'A'. However, there appears to have been a reassessment of CEPI score by the CPCB during February - April 2013 and in that re-assessment it was found that 8 CPAs which were out of 25 CPAs in respect of which moratorium was lifted by the Government of India from time to time based on the recommendations of the CPCB, it was found that even after the period of two and half years of implementation of action plan there was no improvement in the environmental quality and therefore as per the recommendations of the CPCB, the Government of India has reimposed moratorium with immediate effect. The Official Memorandum issued by the MoEF & CC dated 17.9.2013 makes it clear that in respect of the CPA wherein moratorium was lifted and revised CEPI score in February, 2013 made wherein the CPCB has found CEPI Score was above 70 in respect of 8 units out of 26 units and in respect the remaining 18 units the moratorium was lifted The following is the relevant paragraph of the Office Memorandum dated 17.9.2013:

''2. The status of preparation of action plans was reviewed in the Ministry of Environment & Forests from time to time, based on the inputs received from Central Pollution Control Board (CPCB). In accordance with the information received from the Central Pollution Control Board that the respective SPCBs and the local stakeholders had initiated work on implementation of the submitted action plans in respect of the industrial areas/ clusters namely (i) Tarapur (Maharashtra) (ii) Pattencherru-Bollaram (Andhra Pradesh), (iii) Coimbatore (Tamil Nadu), (iv) Vapi (Gujarat) (v) Mandi Govindgarh (Punjab) (vi) Agra (Uttar Pradesh) (vii) Aurangabad (Maharashtra) (viii) Bhavnagar (Gujarat) (ix) Cuddalore (Tamil Nadu) (x) Dombivalli (Maharashtra), (xi) Ludhiana (Punjab) (xii) Navi Mumbai (Maharashtra) (xiii) Varanasi -Mirzapur (Uttarpradesh (xiv) Angul Talchar (Orissa) (xv) Faridabad (Haryana) (xvi) Ghaziabad (Uttar Pradesh), (xvii) Indore (Madhya Pradesh), (xviii) Junagadh (Gujarat), (xix) Noida (Uttar Pradesh) (xx) Panipat (Haryana (xxi) Bhadravati (Karnataka) (xxii) Mangalore (Karnataka), (xxiii) Greater Kochi (Kerala) (xxiv) Singrauli (Madhya Pradesh part and Uttar Pradesh Part) (xxv) Ib Vally (Orissa) and (xxvi) Jharsuguda (Orissa) the Ministry of Environment & Forests lifted the moratorium on consideration of projects for environmental clearance in the above mentioned 26 industrial clusters/areas vide OM.s of even no. dated 26th October, 2010, 15th February, 2011, 31st March, 2011, 23rd May, 2011 and 5th July, 2011. In the remaining 17 identified industrial clusters, the moratorium was extended upto 31st March, 2012 and thereafter it was extended till further orders vide OM of even No. dated 30.03.2012.

The CPCB conducted monitoring in respect of all 43 Critically Polluted Areas (CPAs) during February-April, 2013 and re-assessed in the CEPI score. The CPCB, vide its communication, dated July 24,2013 have informed MoEF about the revised CEPI score based on the monitoring conducted during February-April, 2013. The revised CEPI scores based on the Environmental Quality Monitoring conducted during 2013 indicates that CEPI values are either still above 80 or are above 70 alongwith increasing trend as compared to CEPI values assessed earlier by CPCB in 2011 in respect of eight critically polluted areas namely Ghaziabad (UP), Indore (M.P), Jharsuguda (Orissa), Ludhiana (Punjab), Panipat (Haryana), Patancheru - Bollaram (A.P.), Singraulli (UP & MP) and Vapi (Gujarat) from where, the moratorium was lifted earlier vide O.M. of even no. dated 26.10.2010, 15.02.2011,31.03.2011 and 05.07.2011

The revised CEPI scores assessed during 2013 in respect of these eight critically polluted areas, from where moratorium was lifted earlier, are as below:

C.P.A

CEPI score

S.No.

during 2013.

(i)

Ghaziabad (UP)

84.13

(ii)

Indore (M.P.)

78.75

(iii)

Jharsuguda (Orissa)

73.31

(iv)

Ludhiana (Punjab)

75.72

(v)

Panipat (Haryana)

81.27

(vi)

Patancheru -Bollaram (A.P)

76.05

(vii)

Singraulli (UP & MP)

83.24

(viii)

Vapi (Gujarat)

85.31

The CEPI scores indicates that even after a period of 2 ½ years of implementation of action plans, there is no improvement in the environmental quality as is evident from the observed values of CEPI in 2013. CEPI score in Ghaziabad (U.P., Panipat (Haryana), Singrauli (U.P. & M.P.) and Vapi(Gujarat) is still above 80. In respect of Indore, (MP), Jharsuguda (Orissa), Ludhiana (Punjab) and Pattancheru-Ballaram (A.P), the CEPI score has shown an increasing tend as compared to 2011. In view of this situation, the moratorium is hereby re-imposed with immediate effect in respect of these eight areas till further orders.''

A reading of the said Official Memorandum issued by the Government of India shows that the CEPI score which was revised in the year 2013 has increased above 70 only in respect of eight clusters mentioned in paragraph 4 of the Official Memorandum dated 17.9.2013 which means that regarding the remaining areas in respect of which moratorium was lifted, the CEPI score is not above 70. As stated above, it is solely based on the CEPI score given by the CPCB, the area has been categorised as CPA and therefore from the date when Cuddalore (Tamil Nadu) in respect of which moratorium has been lifted on 15.2.2011, the necessary corollary can be that at least after 17.9.2013 the CEPI score in respect of Cuddalore (Tamil Nadu) is not above 70. It is true that the CPCB has to monitor continuously in respect of 43 original CPA to find out whether CEPI score increases or decreases, depending on which the Government of India takes a policy decision regarding lifting of moratorium. It is only in that regard in the communication dated 23.10.2015 the CPCB has asked for nomination of a responsible officer for the purpose of undertaking assessment and periodical review and monitoring implementation of action plan formulated in respect of 43 CPAs. By communication dated 9.10.2015 the MoEF & CC has nominated officer for assessment and review of CEPI score. That does not mean that any assessment made in February, 2013 becomes invalid It is true that there can be another assessment based on monitoring and review by the CPCB and if CEPI score increases in respect of any area, including Cuddalore, on the recommendation by the CPCB, the Government of Indian can always reimpose moratorium. As long as the CEPI score regarding Cuddalore (Tamil Nadu) in respect of which moratorium has been lifted, appears to have not exceeded 70 score in the reassessment done regarding CEPI score in February - April, 2013, one cannot presume that Cuddalore continues to be a CPA. When the moratorium is lifted and the reassessment of CEPI score in respect of Cuddalore is not found to be above 70 score, we are of the considered view that there is no purpose in contending still that the area should continue to be CPA and the general conditions should prevail.

On the facts of the present case, it is clear that EC dated 24.6.2014 was granted during the period when moratorium was lifted in respect of Cuddalore (Tamil Nadu), since as per the Office Memorandum dated 17.9.2013 in respect of Cuddalore (Tamil Nadu), the CEPI score reassessed in 2013 is not above 70.

It is seen that the fifth respondent- project proponent which has been in existence even before 1994 EIA Notification was in force viz., in 1991 itself has applied for extension of its project on 31.1.2013, by increasing the number of products but reducing the capacity. In Column No.7 of annexure in Form - I given for the expansion proposal the project proponent has stated 'No' for the question whether it attracts general condition. As seen above, the moratorium in respect of Cuddalore was lifted and CEPI score itself, as stated above, has not gone beyond 70 and there is nothing for us to conclude that there has been any suppression much less deliberate suppression in Form - I filed by the fifth respondent - project proponent. At the time when the impugned EC was granted by SEIAA, there is evidence to show that in respect of Cuddalore CEPI score was not above 70 and therefore the moratorium was lifted and there was no bar on the part of SEIAA in having considered the application of the fifth respondent - project proponent.

In view of our findings, we have to consider as to whether the present application filed under Section 14 and 15 of the NGT Act is within the period of limitation prescribed under the said Sections. Section 14(3) of the Act is as follows:

'' (3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.''

The Act contemplates filing of application in respect of resolving civil disputes relating to environment covered under any one of the statutes in Schedule - I within a period of six months from the date when the cause of action for the dispute first arose and another 60 days delay which can be condoned by the Tribunal on showing sufficient cause and beyond that period the Tribunal will not have any jurisdiction. It is seen on record that the present application has been filed on 25.4.2016 challenging the EC dated 24.6.2014 as amended on 24.11.2015. The amendment made in 2015 was onlyin respect of survey numbers and practically the EC dated 24.6.2014 is substantial in issue. One of the conditions in the impugned EC is that the project proponent shall advertise in at least two local newspapers widely circulated in the region around the project one of which shall in the vernacular language of the locality concerned within seven days of the clearance letter informing that the project has been accorded EC and copies of clearance letters are available with the Tamil Nadu Pollution Control Board and may also be seen at the website of SEIAA. In accordance with that the project proponent has given a public notice in ''The Hindu'' dated 29.6.2014 informing about the EC granted and also stating that the website of SEIAA is containing the EC. However, the applicant association which has stated that it has been following various environmental issues by approaching the Tribunal, has not stated as to whether the applicant had access to the website of SEIAA based on the publication given in the newspaper, ''The Hindu'' dated 29.6.2014 by the project proponent. He has only stated about certain efforts taken from 16.2.2016 but has not stated the exact knowledge when the applicant has come to know about the impugned EC. He has not explained the extraordinary delay from June, 2014 to February, 2016, even though the applicant has stated in paragraph 21 which is as follows:

''Thereafter the honorary president of the applicant association visited the office of the District Environmental Engineer, Cuddalore on 10.02.2016 to file RTIs and also request information about the consent orders issued by the TNPCB to the industry. During this meeting, it was also learnt that the industry had also obtained environmental clearance under the EIA Notification, 2006 from the SEIAA. Immediately thereafter, the applicant tried to source the environmental clearance from public domain since the clearance by law is mandated to be made available on the website of the SEIAA, the industry and ought to have been published in its entirety in two leading dailies. However, the applicant was not able to find the entire clearance in the newspapers and the website of the industry also did not have a copy of the clearance uploaded for easy access. The website of the SEIAA was found defunct and the order granting clearance was not to be found.''

He has not given any particulars as to when he had access to the website of SEIAA and what was the result. In the circumstances, it is evident on record produced by SEIAA that EC has been uploaded on the website on 10.10.2014 and many other particulars regarding ToR, SEAC minutes etc which are before the date of the impugned EC. However, it is unfortunate that the project proponent has not stated in its reply as to when the project proponent has uploaded the EC in its website. But taking note of the fact that SEIAA website shows about uploading of EC on 10.10.2014 as per the settled law, the period of limitation triggers from the said date onwards when the EC is available in public domain. In as much as one of the stakeholders viz., SEIAA has displayed the EC on the website on 10.10.2014, it is incumbent on the part of the applicant to explain the delay from 10.10.2014 till the date of filing of the application which he has failed. Simply because the project proponent has not stated anything about the display of the EC on the website, it does not mean that till all these stakeholders displayed the EC on website the limitation will not start triggering.

The contention of the learned counsel appearing for the applicant by placing reliance on the judgment of the Hon'ble Apex Court in SATTI PARADESI SAMADHI V. M. SANKUNTALA ( Civil Appeal No.5954 of 2014 dated 3.7.2014), in our view, is not applicable to the facts of the present case. First of all, the issue involved in that case was in respect of a suit for declaration regarding three settlement deeds whether they are barred by limitation, apart from other issues. The learned Single Judge of the High Court, by referring to Section 27 of the Limitation Act, 1963 ruled that the defendants in the suit and their regal representatives have acquired right, title and interest by adverse possession and held that the suit was barred by limitation. On appeal, while dismissing the same, the Division Bench of the High Court, considered the only grievance of the appellant as relating to the question of limitation as a preliminary issue and the question of limitation is the mixed question of law and facts and the appellant ought to have been given an opportunity to establish that the suit property is a trust property. It was against the dismissal of the said appeal, the Hon'ble Apex Court has decided the Civil Appeal; wherein the issue was taken as to whether the limitation would at all have been taken as a preliminary issue. On the facts of the said case, which is civil in nature, by relying upon Order 14 Rule 2(2) of the Code of Civil Procedure which lays down that where issues both of law and of facts arising in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on issue of law only, it may try that issue relating to the jurisdiction of the court or a bar to the suit created by any law for the time being in force.

By relying upon an earlier judgment in MAJOR S.S. KHANNA V. BRIG. F.J. DILLON wherein it was held that normally all the issues in a suit should be tried by the court especially when the decision on issues even of law depend upon the decision of issues of fact, since it would result in lopsided trial of the suit. It is based on the same and also relying upon Section 10 of the Limitation Act, the Apex Court held that unless there is a determination of the fact which would not protect the plaintiff, the suit cannot be dismissed on the ground of limitation.

Section 19 of the National Green Tribunal Act, 2010 makes it clear that the Tribunal is not bound by the procedure laid down by the Code of Civil Procedure; but shall be guided by the principles of natural justice, even though Section 19(4) provides certain circumstances wherein for discharging the functions under the Act, the Tribunal is vested with the same powers as that of civil court under the Code of Civil Procedure which reads as follows:

''19. Procedure and powers of Tribunal.-

(1) ....

(2) ....

(3) ....

(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 ex parte;

(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''

The learned counsel appearing for the applicant has also relied upon a judgment of the Hon'ble Apex Court rendered in RAMESH B. DESAI VS. BIPI VADILAL MEHTA (Civil Appeal No.4766 of 2001 dated 11.7.2006). It again relates to various provisions of the Limitation Act, Code of Civil Procedure and the issue having been raised under the Companies Act. Though it relates to the effect of fraud or mistake as contemplated under Section 17 of the Limitation Act and ultimately it was held that in respect of the transfer of shares effected under the provisions of the Companies Act which is vitiated by ''fraud'' Section 22 of the Limitation Act will apply and the company petition cannot be held to be barred by limitation.

44 On the factual matrix of the case on hand, as we have arrived at a conclusion that it was at the time when moratorium was lifted in respect of Cuddalore, based on the recommendations of the CPCB and CEPI score, while it was less than 70, the proposal for expansion was made by the project proponent and therefore there is no question of any suppression or fraudulent conduct on the part of the project proponent in the filing of Form No.I especially when it is admitted that the project proponent has stated about the place viz., Cuddalore. Therefore, the above said judgments relied upon by the learned counsel has no application to the facts of the present case.

It was in SUNIL KUMAR SAMANTA V. WEST BENGAL POLLUTION CONTROL BOARD (M.A.No.573 of 2013 in Appeal No.67 of 2013 dated 24.7.2014), the Principal Bench of the National Tribunal, while holding that the appeal was barred by limitation, held that the Tribunal has no jurisdiction to condone delay of 104 days as prayed for. It was held in no uncertain terms that by virtue of the specific provisions under the NGT Act stipulating the period of limitation, it excludes the provisions of the Limitation Act. The relevant portion of the judgment in the above said case is as follows:

''9. A bare reading of the above provision shows that appeal as contemplated under Section 16 against an order or decision or direction or determination, has to be filed within 30 days from the date on which the order is communicated to the aggrieved persons. Proviso to Section 16 of the NGT Act provides for a special limitation i.e. the appeal could be filed beyond the period of 30 days within a further period not exceeding 60 days, upon showing 'sufficient cause'. This means the tribunal cannot allow an appeal to be filed under Section 16 beyond a total period of 90 days. The NGT Act is a self-contained code as it provides for the forum, procedure, limitation, functions and powers of the tribunal. Furthermore, the scheme of the NGT Act, particularly, with reference to the language of Section 16 of the NGT Act, provides special limitation period. Thus, it necessarily excludes the operation of the general law of limitation. The provisions of the Limitation Act cannot be harmoniously construed with the provisions prescribing special limitation under the NGT Act as in that event it would defeat the very purpose of the NGT Act. A limitation provided under special law must prevail over the general law of limitation; particularly in face of the overriding effect given to the NGT Act by the framers of the law in terms of Section 33 of the NGT Act. In terms of Section 33, the provisions of the NGT Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. The cumulative effect of all these factors would be that the special limitation prescribed under the NGT Act does not admit any exception to attract the applicability of the provisions of the Limitation Act. Section 16 of the NGT Act controls the very institution of an appeal in the Registry of the Tribunal. In terms of Section 16, the appeal can be filed 'within a further period not exceeding 60 days ' but thereafter the Tribunal is not vested with the power to allow the appeal to be filed beyond the total period of 90 days. Thus, the tribunal loses its jurisdiction to entertain an appeal after the expiry of the special period of limitation provided under proviso to Section 16 of the NGT Act.

(Emphasis supplied)

The Tribunal, in the above said case, has narrated the entire gamut of the case law on the issue relating to limitation extensively. It is useful to refer to the said paragraphs for the better appreciation of the entire limitation issue which reads as follows:

A bench of five members of the National Green Tribunal, in the case of Nikunj Developers v. State of Maharashtra, 2013 All India NGT Reporter (Delhi) (1) 40, after discussing various judgments of the Supreme Court had taken the view that the Tribunal has no jurisdiction to condone the delay beyond a period of 90 days, even if a sufficient cause is shown and the provisions of the Limitation Act including Section 5 are excluded. The tribunal held as under:

"19. From language of the above provision it is clear that the Tribunal loses jurisdiction to condone the delay if 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 inbuilt 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 the 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.

As stated in the cases Hiralal Ratan Lal and India Houses (supra) the period of limitation statutorily prescribed, has to be strictly adhered to and cannot be relaxed and or departed from, on equitable consideration. Further, in construing a statutory provision, the first and the foremost rule of construction is that of literary construction. We do not see any reason to expand the scope of the provision and interpret the proviso to Section 16 in the manner that Tribunal can be vested with the power of condoning the delay beyond 90 days. Such interpretation would be contrary to the specific language of the Section and would defeat the very legislative intent and object behind this provision.

This controversy need not detain us any further as it is no more res integra and stands answered by the judgment of the Supreme Court in the case of Chhattisgarh State Electricity Board Vs. Central Electricity Regulatory Commission and others (2010) 5 SCC 23 where the court held as under:

"29. Section 34(3) of the Arbitration and Conciliation Act, 1996, which is substantially similar to Section 125 of the Electricity Act came to be interpreted in Union of India v. Popular Construction Company : (2001) 8 SCC 470. The precise question considered in that case was whether the provisions of Section 5 of the Limitation Act are applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996. The two-Judge Bench referred to earlier decisions in Mangu Ram v. Municipal Corporation of Delhi: (1976) 1 SCC 392, Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099, Hukumdev Narain Yadav v. L.N.Mishra (supra), Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai : (1992) 4 SCC 264 and held:

As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to Sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result.

Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" Sub-section (2) and Sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Subsection (3) would not be an application "in accordance with" that Sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section

34 is emphasised by the provisions of Section 36 which provide that:

"Where the time for making an application to set aside the arbitral award under Section 34 has expired ... the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court".

This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow" (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act.

(emphasis supplied)

In Singh Enterprises v. C.C.E., Jamshedpur and Ors. (supra), the Court interpreted Section 35 of Central Excise Act, 1944, which is pari materia to Section 125 of the Electricity Act and observed:

The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for Condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to Sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.

(emphasis supplied)"

The same view was reiterated in Commissioner of Customs, Central Excise v. Punjab Fibres Ltd : (2008) 3 SCC 73

"31. In Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. (2009) 5 SCC 791, a three-Judge Bench considered the scheme of the Central Excise Act, 1944 and held that High Court has no power to condone delay beyond the period specified in Section 35H thereof. The argument that Section 5 of the Limitation Act can be invoked for condonation of delay was rejected by the Court and observed:

"30. In the earlier part of our order, we have adverted to Chapter VI -A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.

As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only upto 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.

.....

XXXXX XXXXX XXXXX XXXXX XXXXX

It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.

(emphasis supplied)

In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory."

Section 34 of the Arbitration and Conciliation Act, 1996 uses the expression 'not thereafter' while the provision under our consideration uses the terms 'not exceeding'. Both these expressions use negative language. The intention is to divest the Courts/Tribunals from power to condone the delay beyond the prescribed period of limitation. Once such negative language is used, the application of provisions of Section 5 of the Limitation Act or such analogous provisions would not be applicable.

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 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, 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."

The provision of Section 16 of the NGT Act is somewhat similar to Section 34 of Arbitration and Conciliation Act, 1996. Thus, adopting an analogous reasoning, as was adopted in Chhattisgarh State Electricity Board (supra), we would have no hesitation in coming to the conclusion that we have no jurisdiction to condone the delay when the same is in excess of 90 days from the date of communication of the order to any person aggrieved.

Thus, the application must fail on this ground alone. We are of the considered view that the Tribunal has no jurisdiction to condone the delay of 19 days in filing the present appeal, the same being in excess of 90 days computed from the admitted date of communication of order, that is 2nd June, 2012."

The above view of the tribunal was followed by different Benches of this tribunal in the case of M/s. Krishna Stone Crushers v. Haryana State Pollution Control Board, 2014 (1) All India NGT Reporter (1) (Delhi) 42. In the case of Aradhana Bhargav v. Ministry of Environment and Forests, 2013 All India NGT Reporter (2) (Bhopal) 1, besides following the law stated in Nikunj Developers (supra), the bench also clearly held that a special enactment, which specifically provides period of limitation would exclude the general law of limitation. Similar view was also expressed by another Bench of the Tribunal in the case of Ms.Medha Patkar v. MoEF & Ors., 2013 All India NGT reporter (Delhi) 285.

In all the above cases, the consistent view of the tribunal has been that the tribunal has no jurisdiction to condone the delay beyond the period of 90 days and it is in fact the very filing of the appeal that is impermissible in terms of proviso to Section 16 of the NGT Act. Admittedly, in the present case, the delay in filing the appeal is beyond 90 days i.e. the total delay being 125 days. Thus, this tribunal has no jurisdiction to entertain the appeal after the expiry of the special limitation period provided under the relevant provisions. We are unable to find any substance in the submissions of the learned counsel appearing for the appellant, that the judgments of the tribunal do not state the correct law and/or are not applicable to the facts of the present case. We have no hesitation in rejecting the said contention raised on behalf of the appellant.

Having said so, we would still proceed to discuss the other contentions raised on behalf of the appellant before the tribunal. It is argued that the language of Section 16 of the NGT Act does not expressly or by necessary implication exclude the provisions of Sections 4 to 24 (inclusive) of the Limitation Act and thus, squarely fall within the ambit of Section 29(2) of the Limitation Act. A limitation period is the period of time prescribed by law within which a person has to approach the prescribed forum/court. The period of limitation is imposed by statutes. There are different limitation periods for different types of cause of action. The period of limitation controls the right of a party to approach the court or tribunal. It also places an obligation upon the court to examine if the claim arising before it, is barred by law of limitation. For instance, the court can reject a plaint inter alia on the ground that it is barred by any law in terms of Order VII Rule 11 of the Code of Civil Procedure, 1908.

The policies underlying the law of limitation are ultimately based on justice and convenience and an individual should not live under the threat of a possible action for an indeterminate period since it would be unjust. Prescription of limitation takes in its ambit fairness and expeditious trial. Indefinite uncertainty in relation to bringing an action would be opposed to public policy. This concept is applicable with great emphasis to the environmental jurisprudence where the project proponent may invest large amount for making its project operational. Challenge to such project on the ground that it does not have any Environmental Clearance or otherwise, has to be within a specified time, as otherwise it would not only be unfair but also be seriously prejudicial to the interest of a party. Vigilance in the pursuit of rightful claims should be encouraged so that these are ethical or rational justifications for the law of limitation.

We have already noticed that NGT Act is a self-contained code in itself. It provides the forum/procedure that has to be adopted, the limitation period within which the jurisdiction of the tribunal gets invoked, and the power and functions of the tribunal in explicit terms. As a self-contained code, it does not admit of any ambiguity with regard to application of other laws in the adjudicatory process of the tribunal. The legislature in its wisdom has worded provisions of Section 16 of the NGT Act so as to prohibit even filing of an appeal beyond a total period of 90 days. The language of these provisions clearly demonstrates the legislative intendment on excluding application of general law of limitation to this special statute. Such a view would also find clear support from the language of Section 29 (2) of the Limitation Act which postulates that when a special law prescribes for any period of limitation different from the period prescribed in the Schedule to the Limitation Act and the language of the provisions of such special law is indicative of express or implied exclusion, then Sections 4 to 24 (inclusive) of the Limitation Act shall apply only and to the extent they are not excluded by the Special Law. The cumulative reading of Section 16, particularly, the proviso and Section 29 of the Limitation Act leaves no doubt in mind that legislature had clearly intended to exclude the application of the general law of limitation provided under the Limitation Act from the NGT Act. Proviso to Section 16 of the NGT Act uses the expression 'allow it to be filed under this Section within a further period not exceeding 60 days'. The use of the negative language 'not' in the proviso makes it mandatory that appeals cannot be filed after the expiry of total period of 90 days and thus, there is lack of jurisdiction of the tribunal to condone the delay beyond a total period of 90 days. The framers of law, where, in their wisdom wanted to give a benefit and/or restrict or place embargo on exercise of a right, have done so by using specific language in Section 16 of the NGT Act. A special concession is made available to an appellant to file an appeal beyond 30 days, the initial period of limitation prescribed under that provision. The framers there put a specific embargo on the power of the Tribunal not to entertain an appeal after the expiry of a further period of 60 days. Thus the legislature, by necessary implication excluded the application of general law of limitation from the provisions of the NGT Act. At this stage we may refer to the judgment of the Supreme Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133, where the Supreme Court was dealing with the provisions of the Representation of the Peoples' Act, 1951 and the applicability of the provisions of the Limitation Act. The Court in relation to the interpretation of the language of Section 29(2) of the Limitation Act held as:

"17. What we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Section 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation."

That was also the view of the Principal Bench of the National Green Tribunal in the case of NIKUNJ JDEVELOPERS VS. STATE OF MAHARASHTRA (M.A.No.247 of 2012 dated 14.3.2013) in which one of us (Justice Dr. P. Jyothimani) was a party, held as follows:

"19. From language of the above provision it is clear that the Tribunal loses jurisdiction to condone the delay if 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 inbuilt 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 the 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.

Section 34 of the Arbitration and Conciliation Act, 1996 uses the expression 'not thereafter' while the provision under our consideration uses the terms 'not exceeding'. Both these expressions use negative language. The intention is to divest the Courts/Tribunals from power to condone the delay beyond the prescribed period of limitation. Once such negative language is used, the application of provisions of Section 5 of the Limitation Act or such analogous provisions would not be applicable.

25 Introduction or alteration of words which would convert the mandatory into directory may not be permissible. Affirmative words stand at a weaker footing 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, 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."

In HIRANLAL RATANLAL V. STO (1973) 2 SCR 502 the Hon'ble Apex Court held that the period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed on equitable consideration.

Therefore, we are not satisfied on the facts of the present case and the reasons assigned nearly for a period of two years for filing the application are not satisfactorily explained by the applicant and we are of the considered view that the application has not been filed within the period of limitation prescribed specifically under Section 14(3) of the National Green Tribunal Act.

In so far as it relates to the allegation of ''fraud'' against the project proponent relating to some of the replies given in Form - I, it is relevant to note that such fact of ''fraud'' has not been pleaded and proved. ''Fraud'' being a factual circumstance, in the absence of pleading and proof cannot be presumed. Even otherwise, we have held that on the facts of the present case, on the basis of recommendations of CPCB during the relevant point of time when the proposal was made by the project proponent for expansion, the Government of India has dropped Cuddalore from moratorium, based on the CEPI score which was stated to be below 70 and in the absence of any other record to show that during the relevant point of time, Cuddalore continued to be under moratorium and therefore as CPA, there is no reason for us to come to a conclusion that everything followed by such statement has become nullity. Whether SEIAA on the facts of the present case is competent to pass orders or not can be gone into only when the Tribunal is satisfied that the application has been filed within the statutory period of imitation prescribed under Section 14(3) or under Section 16 of the NGT Act.

Even in cases of void orders, it was held by the Hon'ble Apex Court in M. MEENAKSHI V. METADIN AGARWAL (2006) 7 SCC 470) that it has to be set aside by a competent court and need not necessarily be a non-est held as follows:

''18. It is a well- settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in the absence of the authorities who were the authors thereof. ;The orders passed by the authorities were not found to be wholly without jurisdiction. They were not thus, nullities.''

Accordingly, the application stands dismissed on the preliminary issue of maintainability. There shall be no order as to cost.

Justice Dr. P. Jyothimani

Judicial Member

Shri P.S. Rao

Expert Member

We are not satisfied with the reasons assigned for the delay of nearly two years in filing the application and accordingly we are of the considered view that the application has not been filed within the time specified under Section 14(3) of the Act.

There is one another factor which is relevant viz, the applicant alleges 'fraud' against the fifth respondent the same should have been pleaded and proved. 'Fraud' being a factual circumstance, in the absence of such pleadings and proof, one cannot presume 'fraud'. Even otherwise, declaration of CPA is as per the recommendations of CPCB apart from the fact that during the relevant point of time when the impugned EC was granted there is nothing on record to show that Cuddalore continues to be CPA. For the reasons stated above, it is true that one cannot expect to know about the various notifications issued by the authorities concerned. The Official Memorandums issued are not the statutory amendments or orders carried out in the EIA Notification, 2006 the impugned EC ignorance of law is no excuse. Even in respect of the jurisdiction of the authority to pass order, whether the SEIAA is competent or not Even otherwise SEIAA is not cannot be decided if the applicant fails to convince the Tribunal that the application has been filed within the period of limitation prescribed under the NGT Act.

While deciding about the maxim ignorance regarding presumption of knowledge of law the Supreme Court has extracted various decisions of the appeal court and observed as follows:

''Moreover, it must be remembered that there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement; there is no such maxim known to the law. Over a hundred and thirty years agao, Maule, J., Pointed out in Martindale vs.Falkner''

There is no presumption in this country that every person knows the law: it would be contrary to common sense and reason if it were so.

Scrutton,L.J. also once said:

It is impossible to know all the statutory law, and not very possible to know all the common law.

But it was Lord Atkin who, as in so many other spheres, put the point in its proper context when he said in Evans V.Bartlam the fact is that there is not and never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application.

In MK. MEENAKSHI KV. METADIN AGARWAL reported in (2006) 7 SCC 470 while holding even void is regulated to be set aside the Supreme Court has observed as follows:

It is well settled principle of law that even a void order is required to be set aside by a competent court of law in as much as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in the absence of the authorities who were the authors thereof. The orders passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities.

Accordingly, the application stands dismissed on the preliminary issue of maintainability. There shall be no order as to cost.