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Judgment
This Appeal has gained access to this Tribunal under Section 16 (h) read with Section 18 of the National Green Tribunal Act 2010, assailing revalidation of Environmental Clearance (EC) granted by the Respondent No.1 in favour of Respondent No.2, revalidating permission/ Orignal EC granted by the Ministry of Environment and Forest (MoEF) Respondent No.3 on 7. 12.2007. The impugned order of revalidation is dated 24. 9.2015 thereby proposed construction of hotel and I.T and commercial project of Survey No.169/I, Sector I and II (part) Aundh, Pune to 2nd Respondent has been granted.
After scrutiny the Appeal was listed before the Tribunal for admission on 4.1.2016. Thereafter Appeal came for consideration on 5.2.2016. Learned Counsel Mr. Rahul Kothari, took Notice for Respondent No.2 and learned Counsel for the Respondent No. 1 was also present. Shri. Rahul Kothari waived service of Notice for the Respondent No.2, and as service affidavit was filed on 14. 1.2016, establishing due service on Respondent Nos. 1,3 and 4, we took up for consideration interim relief sought by the Appellant's Counsel and after hearing Appellant's Counsel and learned Counsel for 2nd Respondent following order is passed.
" Learned counsel appearing on behalf of Respondent No.2 on instructions from Mr. Vikas Waghmare, Chief Engineer of M/s. Chaitrali Builders/Sumanshilp P. Ltd. submits that the entire construction-two (2) level basement and four storied above, is complete and completion certificate to that effect has been issued by Pune Municipal Corporation. Considering the expanse of the entire project, let there not be any further construction of any nature what- so-ever. Item No.30 5th February 2016, Order No.2.
At this stage, learned counsel appearing on behalf of Respondent No.2 M/s.Chaitrali Builders Pvt. Ltd. submits on instructions that it will not be proceeding on with any construction beyond what is stated except that it may be permitted to carry out the interior works in the construction which has received completion certificate. He submits on instruction that whatever internal work which will be done as aforesaid will be subject to outcome of this Application and in case the Environment Clearance under challenge is set aside, Respondent No.2 M/s. Chaitrali Builders shall remove all such interior works at their cost and expenses. We allow the interior work to be completed on condition that same shall be removed without any costs and expenses or without claiming any equity by the Respondent No.2 Chaitrali Builders Pvt. Ltd. in the event of Environment Clearance is set aside.
We direct the Respondent No.2 M/s. Chaitrali Builders Pvt. Ltd. to inform all the units' holders of the mall of these directions of this Tribunal before any unit holder is allowed to occupy and operate in the mall. The compliance of this directions be placed before this Tribunal by the next date".
From the order it is evident that Mr. Rahul Kothari had undoubtedly, under instructions of Respondent No.2 submitted that 2nd Respondent will not proceed with further construction but sought permission to carry out interior decoration and civil work within structure i.e already complete.
It is quite apparent from the subsequent part when this Tribunal passed interim order, learned Counsel appearing for Respondent No.2 Chaitrali Builders Pvt. Ltd submitted that they will not proceed with any construction beyond what is permitted to carry out interior work as it has received Completion Certificate. Considering such submission, this Tribunal observed that it may permit interior work to be completed on the condition that same shall be removed without any cost/expenses or without claiming any equity by the Respondent No.2.
Proceedings continued before this Tribunal and it has come up for consideration of M.A.No.51/2016 filed by the Respondent No.2. By this Application the Respondent No.2 has questioned not only maintainability of the Appeal but the interim order passed by this Tribunal on 5th February, 2016 purely on the question of law i.e. this Court would not take cognizance/Appeal which was belatedly filed beyond period of limitation without satisfying itself that the Appellant had sufficient cause for belated approach. It is further urged as the delay in filing the Appeal is not condoned, this Tribunal has no jurisdiction to grant any interim relief. Second limb of arguments is that delay has not been considered in this Appeal. This Appeal is not legally on the Board of this Bench till delay is considered.
Refuting such contentions, learned Counsel for the Appellant would submit that the provisions of Section 18 of the NGT Act, read with Rule-8 of the National Green Tribunal (Practices and Procedure) Rules, 2011, would apply and therefore the Appellant need not seek condonation of delay. Averments made in the Appeal are sufficient for condonation of delay. He drew our attention to the fact that Section 18 of the NGT Act, or Rule-8 of the NGT Rules, 2011 do not require separate Appeal. He would draw our attention to the Appeal Memo with regard to limitation and thus contended that the Application filed is bereft of merit and needs to be dismissed in limine without disturbing the interim order passed.
The contention of both sides have been considered. At the outset, we may observe that provisions of Section 16 of the NGT Act, itself envisages that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days. The language of this proviso speaks for it that unless there is statement showing 'sufficient cause', the there is no question of the Tribunal considering it as sufficient cause. Besides, there has to be a prayer in the Appeal itself seeking condonation of delay caused.
In the present Appeal the prayer as it is drafted contains no relief for condonation of delay for filing of the Appeal though of course M.A.No.262/2016 is filed. The object of Section 16 makes it clear that though a person may approach beyond period of thirty days, but Tribunal cannot condone the delay even for 'sufficient cause' beyond ninety days. The powers/discretion for condonation of delay is only for further period of not exceeding sixty days. Thus, in all maximum period of ninety days is prescribed for an Appeal. Section 16 proviso also mandates that a person who approaches the Court must show 'sufficient cause' if initiated action is belated beyond period prescribed. Under the circumstances, though Appellants have filed Application for condonation of delay till delay is condoned, appeal will not be legally filed. The contention of the Applicant in M.A.No.51/2016 that without condonation of delay this Tribunal would not have jurisdiction to pass the interim order is thus acceptable.
The phraseology or terminology of proviso is very clear in its expression. It provides that "the Tribunal may if it is satisfied that the Appellant was prevented by sufficient cause from filing the Appeal within said period, allow it to be filed under this section within a further period not exceeding sixty days. The words "allow it to be filed" refers to very initial stage and not after the acceptance of the Appeal. Therefore, to consider interim relief, the Appeal should be legally on the file of the Tribunal. Mere prayer and registering it will not amount admission. That stage will reach after scrutiny and on hearing the Appeal. In the circumstances, withoutconsidering question of limitation which touches maintainability of Appeal granting interim order on 5th February, 2016 would not support the legal exercise.
In the circumstances, we recall the order dated 5th February, 2016, and post the Appeal to hear and to consider question of condonation of delay in M.A. No.262/2015.
The interim relief will be considered subject to result of Misc. Application No.262/2015
Misc. Application No. 51/2016 disposed of with no order as to costs.