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Judgment
The Appellants originally filed this Appeal on 15.3.2014, challenging OMs dated 17 October, 2013, 16 th November 2013 and 20th December, 2013, issued by MoEF, regarding moratorium on development activities in particular ecological sensitive areas of Western ghats. The Appellants have also prayed to direct the MoEF not to grant any Environmental Clearance (EC) in ecologically sensitive zones 1 and 2, pending hearing and final disposal of this Appeal.
Respondent 6 has challenged the Appeal on the grounds of limitation of time and delay through MA 123 of 2014. It was therefore decided to adjudicate on this issue of limitation, first, before going into the merits of matter. It is therefore necessary to deal with chronology of events in this particular Appeal.
The Appeal was filed in the Registry of the Tribunal on 15.3.2014. The Appeal was heard first time on 28/4/2014, when Project Proponent (PP), was added as Respondent No.6. Subsequently on 3/7/2014, the Appellants requested for amendment of pleadings and prayer clause which was allowed. Thereafter the Respondent No.6 filed Misc Application No.123 of 2014 on 31/7/2014 raising preliminary objections, opposing the Appeal on limitation ground. The matter was again heard on 11/8/2014 when learned Counsel for the Appellant was informed about the MoEF directions issued on 13.11.2013 under Section 5 of the Environment (Protection) Act,1986. The Appellants were asked to verify whether the areas indicated in the Application are governed under the said directions and whether bauxite mining of the Respondent No.6, falls within the said area. The Appellant on 6th September, 2014 sought to amend the appeal memo by electing remedy of keeping Appeal as it is and limiting the challenge to the extent of EC granted to the Respondent No.6, as regards bauxite mining. However, even up to 30th September, 2014, no such election of remedy was made by the Appellant. Learned Counsel for the Appellant and the Appellant himself were present in the Tribunal and confirmed that the Appeal is confined to the remedy related to challenge the EC granted to the Respondent No.6, dated 6.1.2014. After hearings on October 16 and November 26, 2014, the matter was finally heard on December 19, 2014 on limitation issue raised in M.A.No.123 of 2014.
With the above chronology on record, the Respondent No.6, has challenged the Appeal on preliminary ground of limitation. It is his submission that the Respondent No.6 was granted EC by the MoEF on 6.1.2014, after compliance of due procedure of EIA Notification. He states that none of the Appellants at any stage have raised even a single objection against the project. The Respondent No.6 further states that the Appeal, as originally filed on 15.3.2014, mention EC granted to their bauxite mining project as evident from para (J) of the grounds which clearly demonstrates that Appellant's were aware of EC granted to Respondent-6 while filing the Appeal on 15.3.2014. In spite of having this knowledge, they had chosen not to challenge this EC in their original Appeal and had just prayed that the Respondent No.1 i.e. MoEF should not grant any EC in the identified ecological sensitive areas (ESA). It is contention of the Respondent No.6 that even up to 30th September, 2014, no election of remedy was made by the Appellants in spite of clear direction from Tribunal in the earlier orders. Only on 30.09.2014, they selected such remedy challenging EC of Respondent No.6, leaving Appeal of other issues and claims.
The Respondents claim that though amendment to the prayer-clause was allowed vide order dated 3.7.2014, amended memorandum of Appeal was received by the Respondent No.6 on 24.7.2014, containing the amended prayer clause No. IV-A and VII-A. The prayer clauses amended are for quashing and setting aside of EC dated 6.1.2014 accorded to the Respondent No.1.
The Respondent No.6, therefore submits that though EC was granted on 6.1.2014, the same is factually challenged before the Tribunal only on 24.7.2014, even if considering the date of order of Tribunal, it can be considered as only on 3rd July, 2014. Therefore, his contention is that even considering scenario, adverse to him, the Appeal has been filed after substantial period of more than 5 months. He contends that as per Section 16 of the NGT Act, the Appellant is required to file an Appeal within 30 days, which can be further extended by the Tribunal up to 60 days, only after satisfying itself about the reasonability of the causes of such delay before condoning such delay. The Respondents submit that the Appellant had clear knowledge of EC granted to them, as admitted in ground 'J' of the original Appeal. He submits that Appellants are NGOs actively working in the field of environment and have filed several petitions in the High Court as well as NGT and are well versed with the procedure and provisions of the Act and therefore, the Respondents claim that there is no substantial ground shown by the Appellants for such delay. The Respondents submit that EC is granted on 6.1.2014, the limitation will trigger from that day and after 90 days i.e. on 7.4.2014, the Tribunal do not have jurisdiction to entertain such Appeal, which is clearly demonstrated through various judgments of the NGT itself. The Respondent No.6 also submits that the Appellants have even not filed any Application for such condonation of delay.
Countering this the Counsel for the Appellants submit that they have mentioned the impugned the EC granted to the Respondent No.6, as one of the grounds of the Appeal and therefore, it cannot be segregated in isolation from prayers. In fact, even in limitation para, it is submitted that the project of the Respondent No.6, was approved on 6.1.2014, which has prompted the Appellants to file this Appeal. It is, therefore, contention of the Appellants that the project of the Respondent No.6, is located in ecological sensitive zone, which was regulated by various OMs of the MoEF. The Appellants also contended that they have filed M.A.No.60 of 2015 highlighting the reasons for delay in submission and only after, the bauxite mining project of the Respondent No.6, was approved by MoEF, they came to know about the OMs. In summary, it is the contention of Applicants that as there is a reference to EC granted to Respondent No.6, in original Appeal, the amendment as ordered on 3/7/1995 cannot be read in isolation from original Appeal and hence, though the prayers are amended on 24/7/2014, the Appeal is deemed to have been filed on 15/3/2014 itself.
The limited question which has to be answered at this stage is whether said Appeal is within limitation.
We have heard the parties and also perused the records. Admittedly, EC was granted to the Respondent No.6 on 6.1.2014 and published in newspaper through public notice on 11.1.2014. Admittedly, the Appellants were aware of such grant of EC while filing Appeal, as same is mentioned in one of the grounds and also paragraph of limitation. The original Appeal was not having only general or specific prayer against the EC granted to the Respondent No.6. As per available record, such amendment was allowed by order dated 3.7.2014, and amended Appeal was received by the Tribunal on 11.8.2014 and the same was received by the Respondent No.6 on 24.7.2014. The mere mention of the EC granted to Respondent No.6, in the grounds of original Appeal do not subscribe to the prayers to Respondent No.6, in the absence of only specific or general prayer to this regard. The above facts clearly indicates that the Appeal has been filed beyond 30 days of the grant of EC i.e 6.1.2014, when the limitation can be deemed to have triggered and even beyond the grace period of 60 days as contemplated in Section 16 of NGT Act, 2010. The Appellants have themselves mentioned in amended memo of the Appeal that they came to know about EC dated 6.1.2014 on 11.1.2014, when it was published in local newspapers. Even considering that the limitation period triggered on 11.1.2014, Appeal has been filed, with amended prayer, to challenge the impugned EC of Respondent-6, well beyond 90 days.
It is settled principle now that limitation once commenced cannot be stopped for various reasons. Further the NGT Act do not provide any scope for the Tribunal to extent limitation period beyond 90 days, even after considering delay condonation on substantial grounds. It is not necessary to report numerous Judgments of NGT in this regard for sake of repetition. In view of above, the Appeal is barred by limitation of time. M.A.No.123 of 2014 is allowed and consequently Appeal No.7 of 2014 is dismissed along with M.A.No.60 of 2014. The Main Appeal as well as Misc. Applications are accordingly disposed of. No costs.