1. This Appeal under Section 16 and 18 of the National Green Tribunal Act, 2010 read with Section 33 (B) of the Water (Prevention and Control of Pollution) Act, 1974 has been filed against the order dated 15.11.2021 passed by the respondent no. 1 levying environmental compensation upon the appellant.
2. There is a delay of 424 days in filing the Appeal, therefore, I.A. No. 669/2023, an application under Section 16 of the NGT Act, 2010 read with Section 5 along with Section 14 of the Limitation Act, 1963 has been filed seeking condonation of delay.
3. The plea taken by the appellant in the application is that the impugned order was passed on 15.11.2021. On receipt of the order, the appellant had deposited the amount on 18.11.2021. The 30 days period for filing the Appeal expired on 14.12.2021. However, Hon’ble Supreme Court in Suo Moto Writ Petition No. 3 of 2020 had excluded the period from 15.03.2020 till 28.02.2022 from the purview of limitation for filing of petitions/appeals etc. and further 90 days was granted to those persons whose limitation expired during the extended period. Further plea of the appellant is that the competent authority had decided to challenge the order on 22.04.2022 and the Advocate was engaged on 05.05.2022, who had refused to accept the brief, therefore another counsel was engaged on 28.05.2022 and thereafter, appeal was filed before the Appellate Authority, which was dismissed by order dated 10.11.2022 as not maintainable, leaving the appellant at liberty to avail such other remedies as are available to it. Thereafter, an attempt was made to engage a Counsel and the present Counsel was engaged, who first tried to e-file the appeal online on 09.06.2023 but there was error and between 09.06.2023 to 09.07.2023, various efforts were made to resolve the issue and then fresh approval was taken on 27.07.2023. Thereafter, the present appeal has been filed on 31.07.2023.
4. Learned Counsel for the appellant has submitted that the period in terms of the order of the Hon’ble Supreme Court in W.P. No. 3 to 2020 is required to be excluded and the time spent by the appellant in diligently prosecuting the appeal before the wrong forum is also required to be excluded under Section 14 of the Limitation Act, 1963 and the remaining period of delay is required to be condoned attracting Section 5 of the Limitation Act, 1963 for which sufficient explanation has been submitted.
5. Having heard the learned Counsel for the appellant on the appeal on the perusal of the record, we noticed that Section 16 of the NGT Act, 2010 provides for filing an Appeal against the specified orders and it also provides the limitation of 30 days from the date on which the order or decision or direction or determination is communicated to the party. The proviso thereof gives jurisdiction to the Tribunal to condone the delay of “not exceeding 60 days” if sufficient cause is shown for the delay. Relevant extract of Section 16 of the NGT Act, 2010 is as under:-
“16. Tribunal to have appellate jurisdiction. -Any person aggrieved by,-
(a) to (j)……………………..xxx………………..xxx………………………..xxx
may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:
Provided 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.”
6. A bare perusal of the above provisions reveal that the initial limitation for filling the Appeal is 30 days from the date of communication of order or decision or direction or determination. After expiry of the initial 30 days period, a further window of 60 days has been provided to the party to file an appeal by showing the sufficient cause which prevented him from filing the appeal within the initial 30 days period and on satisfying the Tribunal about sufficiency of the cause. Thus, the Tribunal has been conferred with the power to condone the delay of 60 days only after the expiry of initial 30 days period. The said intention of the Legislature is clear from the phrase “not exceeding 60 days” used in the proviso.
7. The above issue is no longer res integra. The six Member Bench at the Principal Bench of the Tribunal in M.A. No. 247/2012 (Arising out of Appeal No. 76/2012) in the matter of Nikunj Developers & Ors. vs. State of Maharashtra & Ors. had considered this issue in a case where the delay in filing the appeal was in excess of 90 days. The Tribunal considering the language of Section 16 of the Act reached to the conclusion that the Tribunal loses jurisdiction to condone the delay if it is of more than 90 days. In other words, if appeal is filed after a lapse of 90 days from the date of communication of order, the Tribunal loses jurisdiction to condone the delay. While holding so, the Tribunal has duly considered the judgment of the Hon’ble Supreme Court in the matter of Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission and Ors. reported in (2010) Vol 5 SCC Page 23 wherein similar provision containing limitation for filing objection in Section 34 of the Arbitration and Conciliation Act, 1996 was examined and also the judgment of the Hon’ble Supreme Court in the case of the Singh Enterprises vs. C.C.E., Jamshedpur & Ors. interpreting Section 35 of the Central Excise Act, 1944 and the judgment in the matter of Commissioner of Customs, Central Excise vs. Punjab Fibres Ltd. reported in (2008) Vol III SCC 73. The Tribunal in the matter of Nikunj Developers (Supra) after noting section 16 of NGT Act had 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.
20. 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.”
8. The Tribunal in Nikunj Developers (Supra) has also duly considered the effect of negative expression “not exceeding 60 days” and held it to be mandatory by observing as:-
“24. The use of negative words has an inbuilt element of 'mandatory'. The intent of legislation would be to necessarily implement those provisions as stated.
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.”
9. The Tribunal found that Section 16 of the NGT Act, 2010 is somewhat similar to Section 34 of the Arbitration and Conciliation Act, 1996, therefore, considering the judgment of the Hon’ble Supreme Court in the case of Chhattisgarh State Electricity Board (Supra), the Tribunal reached to the following conclusion:-
“26. The provision of Section 16 of the NGT Act are 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.”
10. The same issue again came up before five Member Bench of the Principal Bench of the Tribunal in M.A. No. 573/2013 in Appeal No. 67/2013 in the matter of Sunil Kumar Samanta Vs. West Bengal Pollution Control Board & Ors. in a case where the appeal was barred by 104 days and an application for condonation of delay was filed. The Tribunal found that the NGT Act, 2010 is special law and the limitation provided under the Special Law must prevail over the general law of limitation especially when overriding effect has been given to the NGT Act, 2010 by the framers of law in terms of Section 33 of the Act. The Tribunal in this regard held that:-
“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.”
11. The same view has been taken by the five Member Bench of the Tribunal in Principal Bench in the order dated14.03.2013 passed in M.A. No. 104/2012 (arising out of Appeal No. 39/2012) in the matter of Save Mon Region Federation & Anr. vs. Union of India & Ors. where an appeal was filed beyond the period of 30 days.
12. The same view has been again expressed by the Tribunal by the four Member Bench of the Tribunal at principal seat in the order dated 25.09.2014 passed in Appeal No. 33/2013 in the matter of Sudiep Shrivastava Vs. Union of India & Ors. wherein the Tribunal held that after the expiry of 90 days period, the Tribunal will have no jurisdiction to condone the delay.
13. The next relevant fact which is required to be looked into while considering the application for condonation of delay is the date of communication of order against which the appeal is preferred. In terms of Section 16 of the NGT Act, 2010, limitation commences from the date of communication. This issue has been examined in detail by Five Member Bench of the Tribunal in the matter of Save Mon Region Federation (Supra) wherein the Tribunal after noting that Legislature in his wisdom has used the word communication under Section 16 in contradiction to “serving”, “receiving”, “delivery” or “passing” of the order has considered in detail the expression “communication” in light of various dictionary meanings. The Tribunal found that the expression “is communicated to him” would invite strict construction and it requires the authority passing the order to put the same in public domain by using proper means of communication. The Tribunal in this regard in the case of Save Mon Region Federation (Supra) has held that :-
“19. The limitation as prescribed under Section 16 of the NGT Act, shall commence from the date the order is communicated. As already noticed, communication of the order has to be by putting it in the public domain for the benefit of the public at large. The day the MoEF shall put the complete order of Environmental Clearance on its website and when the same can be downloaded without any hindrance or impediments and also put the order on its public notice board, the limitation be reckoned from that date. The limitation may also trigger from the date when the Project Proponent uploads the Environmental Clearance order with its environmental conditions and safeguards upon its website as well as publishes the same in the newspapers as prescribed under Regulation 10 of the Environmental Clearance Regulations, 2006. It is made clear that such obligation of uploading the order on the website by the Project Proponent shall be complete only when it can simultaneously be downloaded without delay and impediments. The limitation could also commence when the Environmental Clearance order is displayed by the local bodies, Panchayats and Municipal Bodies along with the concerned departments of the State Government displaying the same in the manner afore-indicated. Out of the three points, from which the limitation could commence and be computed, the earliest in point of time shall be the relevant date and it will have to be determined with reference to the facts of each case. The applicant must be able to download or know from the public notice the factum of the order as well as its content in regard to environmental conditions and safeguards imposed in the order of Environmental Clearance. Mere knowledge or deemed knowledge of order cannot form the basis for reckoning the period of limitation.”
14. Since the issue of manner of communication of the order was involved, therefore, the Tribunal in the matter of Save Mon Region Federation (Supra) had finally issued the following directions:-
“64. Before we part with this file, we are of the considered view that it is required of us to pass certain directions so as to provide clear meaning to the expression ‘communication’ and also to ensure that none of the stakeholders, including MoEF, Project Proponent and the other concerned persons are placed in a disadvantageous position for inaction or lapse of the other in fulfilment of their respective statutory obligations. To serve the ends of justice better and in the larger public interest, we hereby issue the following directions:
1. The MoEF shall, within seven days from the date of passing of the order of Environment Clearance, upload it on its website. It shall be the duty of the MoEF to ensure that immediately upon its uploading the same should be made accessible and can be downloaded without any delay or impediment. It would remain so uploaded on the website for a period of at least 90 days.
2. The Ministry shall also maintain a public notice board in its premises including its regional offices, where the public is permitted without hindrance and display the order of environmental clearance on that notice board for a period of 30 days.
3. Orders communicated and displayed shall be complete, particularly in relation to the environmental conditions and safeguards, and proper records of the order being uploaded on the website and its placement on the public notice board of the MoEF shall be maintained by MoEF in normal course of its business.
4. The Project Proponent in terms of Regulation 10(i)(a) shall publish the factum of environmental clearance granted to the project along with environmental conditions and safeguards, at its own costs. Such publication shall be effected in two local newspapers of the district or State where the project is located.
5. In addition thereto, the Project Proponent shall display on its website permanently, the factum, environmental conditions and safeguards of environmental clearance. This shall be done in the name of the company, unit or industry which is the Project Proponent and not in the name of its parent or subsidiary company or sister concern.
6. The Project Proponent shall also submit the copies of the Environmental Clearance to the Heads of the local bodies, panchayats and municipal bodies of that district.
7. The Project Proponent shall also submit to the concerned department of the Government of that State, copy of the Environmental Clearance which in turn shall be displayed by the concerned department of that government for a period of 30 days on its website as well as on its public notice board.
8. Besides the above, a Project Proponent, under the conditions of the consent order, if so provided therein, shall publish the factum of grant of Environmental Clearance in two newspapers, one being in vernacular language, having circulation in the area where the industry is located. It shall give such necessary information, which may not contain the conditions and safeguards for grant of Environmental Clearance.
9. In view of the order of the Central Information Commissioner and the record before us, we hereby direct the MoEF to ensure that its website is always in working order and shall be positively accessible to the public at large to enable any person to download the requisite information instantaneously. Such steps should be taken forthwith.
10. The date on which the order of Environmental Clearance is communicated to the public at large, shall be the date from which the period of limitation shall reckon as contemplated under Section 16 of the Act. Communicating the order, in other words, shall mean putting the order in the public domain in its complete form and as per the mode required under the provision of the NGT Act of the Regulation 2006. The limitation shall start running and shall be computed as referred to in Para 19 of the judgment. Where different acts by different stakeholders are complied with at different dates, the earliest date on which complete communication is carried out, shall be the date for reckoning of limitation.”
15. In Sudiep Shrivastava (Supra), again the above issue had come up for consideration before the Tribunal and the Tribunal had held that the expression “communicate to him” has to be construed in light of obligations specified in para 10 of the EIA Notification, 2006 i.e. to place the order granting environmental clearance in public domain, which should be easily accessible and known to public at large, as any person who feels aggrieved has the right to prefer an Appeal under Section 16 of the NGT Act irrespective of the fact whether he has suffered any personal injury or not.
16. Having examined the present case in light of the above settled legal position, we find that in view of the order of the Hon’ble Supreme Court in Suo Moto Writ Petition No. 3 of 2020, the period from 15.03.2020 to 28.02.2022 with further period of 90 days as claimed by the appellant is required to be excluded. Since, the order impugned was passed during this period, therefore, the limitation for filing the appeal had commenced on 29.02.2022 and the appellant had initial 30 days period to file the appeal. Thereafter, further 60 days period was available to file appeal with application for condonation of delay showing sufficient cause. This 90 days period had expired on 29.05.2022 but the appeal has been filed on 31.07.2023.
17. According to the appellant, he had preferred an appeal before the incompetent forum but the applicant has not disclosed the date of filing of such appeal. The date of dismissal of that appeal is disclosed as 10.11.2022 Even if, we calculate the limitation period of 90 days from 10.11.2022 then also the said 90 days period had expired on 10.02.2023 whereas the first attempt to file the appeal was made on 09.06.2023 which was much beyond the 90 days. Hence, such a delay cannot be condoned for want of jurisdiction.
18. Thus, I.A. No. 669/2023 is accordingly dismissed. Consequently, the appeal is also dismissed.
