Shri Sajal Kumar vs Union Of India And Others

The order dated 24th May, 2012, passed by Ministry of Environment and Forests (MoEF) granting Environment Clearance (EC) in favour of M/s Bharat Aluminium Company Ltd. for setting up of Durgapur-II Taraimar Opencast (3 MTPA) - cum- Underground (1 MTPA) Coalmine project having combined capacity 4 MTPA with Captive Washery (4 MTPA) in a Mine Lease (ML) area of 1070 hac in villages Taraimar, Bayasi Basti, Bayasi Colony, Dharma Colony, and Rupunga, Tehsil Dharamjaigarh, District Raigarh Chhattisgarh. The said Appeal is filed invoking the jurisdiction of this Tribunal under Section 16(h) read with Section 14(1) and Section 18(1) of the National Green Tribunal Act, 2012 (NGT Act).

In the case in hand the impugned order granting EC was passed by MoEF on 24th May, 2012. In consonance with Section 16 of the NGT Act, 2010 the Appeal should have been filed within 30 days that is on or before 13th July, 2012. Admittedly this Appeal has been filed on 30th August, 2012 thus the same is beyond the time prescribed under the Act.

In the Petition filed for Condonation of Delay, the Applicant has taken the stand that he received no intimation with regard to the aforesaid order from any quarter. The order was neither displayed in the website nor published in any newspaper. Consequently, it was not possible for the Applicant to collect the copy of the order so as to enable him to file effective Appeal. The Appellant also explained the delay by giving several other reasons to establish bonafide and that there was no deliberate latches. The delay according to the Applicant was caused due to reasons which were beyond their control. In support of the case that the order was not available to the public before 27th July, 2012, the Applicant relies upon the information furnished by the Public Information Officer, Chhattisgarh Environment Conservation Board, (CECB), Raipur, wherein it has been stated that the copy of the EC was not received by said officer till the said date. Several other grounds have also been taken to explain the delay.

Section 16 of the NGT Act, 2010, as stated earlier clearly stipulates that an Appeal assailing the order granting EC has to be filed within 30 days from the date on which the order or the decision or direction or determination is communicated. It is well settled that communication of the order to every individual who may be aggrieved by the same is not possible. Thus, it has to be presumed that the date when the order is displayed in the website of the MoEF or is published in the newspapers adhering to the provisions of the 2006 Notification (Amended) is the date of communication, by applying the principles of constructive communication.

The MoEF has filed an Affidavit indicating that the order granting EC dated 24th May, 2012 was uploaded in the website only on 14th June, 2012. If the said date is taken to be the date on which the cause of action arose in favour of the Appellant to prefer the Appeal, the Appeal having been filed on 30th August, 2012, there appears to be a delay of 37 days.

Mr. P.S. Narasimha, Learned Senior Advocate appearing for the Respondent No. 3 (Project Proponent) relying upon the paper publication Annexure 1 series, forcefully submitted that a notice was published in daily newspaper both in Hindi and English on 26th May, 2012, 29th May, 2012, 01st June, 2012 and 02nd June, 2012 informing that the MoEF has granted EC to the project. According to Learned Counsel, the public notice should be construed as constructive communication, thus nothing prevented the Appellants from preferring an Appeal within 30 days from the date of such publication.

For the sake of convenience and better understanding the English version of the public notice published in the newspapers on the aforesaid dates is quoted herein below:-

"This is to inform the general public that Ministry of Environment and Forests (MoEF) Govt. of India has accorded Environmental Clearance for Durgapur - II, Taraimar Opencast (3 MTPA) cum-Underground (1 MTPA) Coal Mine Project (combined OC-cum-UD=4 MTPA) & Captive Coal Washery (4 MTPA) in an ML area of 1070 ha of M/s Bharat Aluminium Company Limited (BALCO) located in village Taraimar, BayasiBasti, Bayasi Colony, Dharam Colony & Rupunga, Tehsil Dharamjaigarh, District Raigarh Chhattisgarh. A copy of the clearance letter no. J-11015/272/2008-IA.II(M) Dated May 24, 2012 is available with Chhattisgarh Environment Conservation Board and also at website of MoEFhttp://envfor.nic.in".

Further, Respondent No. 3 in its reply filed to the condonation delay petition has also repudiated the averments made in the different paragraphs of the Limitation Petition and emphasized that in fact the delay being more than 90 days, this Tribunal should not entertain the case in consonance with the provision of Section 16 of the NGT Act, 2012. It is further specifically averred that the Appellants were fully aware about the impugned order and delay in filing this Appeal lacks bonofide and as they failed to advance valid and sufficient reason for condoning delay it is a fit case where the Petition for condonation of delay should be dismissed in limine.

Admittedly, the Appeal has been filed beyond time. In consonance with the provisions of Section 16 of the NGT Act, 2010, in the event this Tribunal is satisfied that the Appellants were prevented by sufficient cause from filing the Appeal after 30 days but within 60 days thereafter, it can condone the delay and entertain the same.

Heard Learned Counsel for the parties at length. Mr. Dutta Learned Counsel for the Appellants reiterated the stand taken in the petition filed for condonation of delay and forcefully submitted that cause of action for filing the Appeal at best can be presumed to have arisen on 14th June, 2012 when MoEF said to have displayed the order granting EC in their website. As would be evident from the letter dated 27th July, 2012 issued by the Public Information Officer, CECB, Raipur, the copy of the order was not available till 27th July, 2012. Thus the Appellants were not aware about the contents of the order as the same was not duly communicated either personally or constructively to general public.

Mr. Dutta further elucidating his arguments submitted that a litigant cannot assail an order unless he is aware of the contents thereof. A simple notice published in the newspaper intimating that such an order has been passed can be construed only for their information and shall not be treated as communication of the order. Only after coming to know about the contents, of the order the Appellants took steps to obtain legal advise and to file the Appeal.

Thus, there were sufficient reasons for not presenting the Appeal in time and this Tribunal may condon the delay.

On the other hand, Mr. P.S. Narasimha, Learned Senior Advocate, appearing for the Project Proponent took pains to place the provisions of the Act and Notification and submitted that the date on which the public notice was published in the newspaper should be construed as the date of constructive communication. The Appeal having been beyond 90 days from the paper publication should be dismissed. But then the notice published in the Newspaper in Hindi and English on 26th May, 2012, 29th May, 2012, 01st June, 2012 and 02nd June, 2012 wrongly mentioned that the copy of Clearance letter is available with CECB and at website of MoEF, whereas the MoEF actually uploaded EC only on 14th July, 2012 and CECB informed the Petitioner in response to a RTI application that EC was not available with them,as such the notice published in the Newspapers become redundant.

In the case of Ajit Singh Thakur Singh &Anr. Vs. State of Gujarat (1981)1SCC495. The Hon'ble Supreme Court observed that a person pleading sufficient cause for not filing an appeal must establish that because of some event or circumstances arising before limitation expired, it was not possible to file an Appeal within time.

The legislature under the provision of Section 16 of the NGT Act has conferred the power to condone delay up to 60 (sixty) days after the period of limitation which is 30 (thirty) days. This has been contemplated with a pious objective of enabling this Tribunal do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" used by the legislature is adequately elastic to enable the Tribunal to apply the law in a meaningful manner which subserves the ends of justice. The Supreme Court in the case of Collector, Land Acquisition, Anantnag and Another Versus Mst. Katiji and Others (1987)2 Supreme 12, laid down 6 (six) guidelines to be kept in mind while dealing with limitation:-

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational commonsense pragmatic manner.

When substantial justice and technical considerations are pitted against each 13 other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account for mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

In the case of Ram Nath Sao Vs. Gobardhan Sao and others (2002) 3 SCC 195, the Supreme Court while dealing with the word "sufficient cause" observed that a liberal construction has to be given so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party.

It appears that the application for condonation of delay has set out the reasons why the Appellants could not file the appeal within the period of 30 days from the date of the order granting environmental clearance. In the instant case, averments made in the memorandum of appeal, as well as the Petition for condonation of delay, set out the reasons why the appeal could not be filed by the Appellants within time. In our view, these were sufficient reasons for condoning the delay in filing the appeal, and no deliberate latches could be attributed to the Appellants.

The history of the case and the submissions advanced inter-se by the parties, leads to a conclusion that in a case like the present one, where the environmental impact of the project on local population in terms of environmental implications, has to be assessed, the approach of this Tribunal, especially set up for the said purpose, should be literal and not "hyper-technical".

It transpires that the website of the MoEF uploads the orders granting environmental clearance long after they have been passed and invariably after the expiry period to 30 days which is the limitation for filing appeals. As a result, the persons who desire to file an appeal, and who are located outside Delhi, are unable to file them within time. If, as contended by Mr. Narasimha, a strict construction has to be placed on the proviso to Section 16 of the NGT Act, 2010, then it would be mandatory for MoEF to disclose on its website not only the information about the order granting environmental clearance in each case, but the entire order as well, not later than five days after the date of the order granting such clearance. This is because an aggrieved person, not being privy to the order granting environmental clearance, is unlikely to learn of the order within a reasonable time thereafter, except by looking for it on the website of the MoEF.

That apart in the case of Jan Chetna & Anr. Vs. Union of India &Ors.disposed on 14th October, 2009, divisional bench of Hon'ble High Court of Delhi presided by the then Chief Justice directed that if the remedy by way of an Appeal against an order granting EC has to be made meaningful, it would be an obligation of the MoEF to ensure that information of passing such order must be in the public domain at the earliest and definitely within a period of 5 days from date of passing of such order. Apart from upholding the full text of such order on its website the MoEF will publish the said order in local newspapers in the area in which the industry concern is located or proposed to be located, one on which is in the local language.

The words published the said order in two local newspapers means and connotes that MoEF would publish the entire order and not a cryptic notice indicating that the order has been published. That apart law is well settled that unless a person aggrieved knows the contents of the order, no Appeal can be filed assailing the same.

On the basis of discussions made above and on being satisfied that Appellants were prevented from filing the Appeal due to sufficient reasons, we condon the delay. The Application of Condonation of Delay is accordingly allowed.

List the Appeal on 15th January, 2013 for filing replies.