Raghuvendra S. Rathore, J. (Member (J))

1. The appellant has filed this misc. application seeking condonation of delay in filing the appeal. The appeal has been filed against Environmental Clearance dated 25.01.2018 granted by Ministry of Environment, Forests and Climate Change, to respondent No. 1. M/s. Ultratech Cement Limited for limestone mine in villages Kalsar, Dayal & Kotda, Taluka-Mahuva, District-Bhavnagar (Gujarat).

2. It has been submitted by the applicant that on 10.02.2018 he had received a letter dated 30.01.2018 from Respondent No. 1, M/s. Ultratech Cement Limited, wherein it was communicated that EC has been granted to it by Respondent No. 2. Further, it is submitted that as per Section 16 of the NGT Act 2010, period of limitation starts from the date of communication of the order to the appellant. It is also submitted that proviso to Section 16 gives discretion to the Tribunal to allow the appellant to file an appeal even after expiry of period of thirty days but it cannot be exercised beyond ninety days. It is submitted by the appellant that the present case is covered by the proviso to Section 16 of the.

3. It is the case of the appellants that after it came to their knowledge that EC has been accorded to Respondent No. 1, they started collecting documents and contacting the counsels for filing an appeal. Therefore, according to the appellant it is due to aforementioned reasons that they were unable to file the instant appeal within the statutory period of limitation.

4. The applicant has also submitted that if this misc. application is not allowed the activities of Respondent No. 1 will cause irreparable damage to the environment and wildlife of the villages. The applicant has submitted that they have a prima facie case. Further that since the appellant is filing the instant appeal, it is in the interest of the justice to condone the delay in filing of the same against the illegal and unauthorised activities being carried out by Respondent No. 1.

Accordingly, it has been prayed by the applicant that the delay in filing the appeal, under Section 16 of the NGT Act, 2010, be condoned.

5. A counter affidavit to the application for condonation of delay has been filed on behalf of respondent No. 1, M/s. Ultratech Cement Limited. The respondent has submitted that the appeal has been filed after a period of ninety days, from the date of communication of the order. Therefore, the delay beyond the said period is not condonable by the Tribunal, in the light of the provision of Section 16 of NGT Act, 2010. Respondent No. 1 has further referred to the case of Nikunj Developers Vs. State of Maharashtra (M.A. No. 247/2012) where the Tribunal had held that it has no jurisdiction to condone the delay under the proviso to Section 16 of the NGT Act, 2010, beyond a period of ninety days even if sufficient cause is shown and the provisions of the Limitation Act, including Section 5 are excluded.

6. The respondent has also relied upon the case of Union of India Vs. Popular Constructions, : (2001) 8 SCC 470 wherein the Honble Supreme Court interpreted the power of condonation of delay under the proviso of Section 34(3) of the Arbitration and Conciliation Act, 1996, which is pari materia to the proviso to Section 16 of the NGT Act, 2010 and held that the court does not have power to condone the delay beyond the period prescribed in proviso.

7. The respondent has also referred to the case of Save Mon Region Federation Vs. Lobsang Choedar (M.A. No. 104/2012) wherein it has been held that the limitation shall commence from the date an order is communicated. The Tribunal had interpreted, in the said case, as to what constitutes communication under Section 16 of the NGT Act, 2010.

Therefore, it has been submitted by respondent No. 1 that there are three mutually exclusive ways by which the communication of the order for grant of Environmental Clearance may be sent. The limitation period would commence and computed from the earliest completion of any of the three methods.

8. Respondent No. 1 has submitted that, in the present case, EC was granted on 25.01.2018, as well as, uploaded on the website of the Ministry of Environment, Forests and Climate Change. It could be downloaded, without any hindrance, on 29.01.2018. This fact is confirmed as environment consultant of respondent No. 1 had informed them about the grant of EC and sent the same vide E-mail dated 29.01.2018 (Annexure R-1/1). Further an affidavit of an employee of the answering respondent (Annexure R-1/2) who had downloaded the EC on 30.01.2018 and sent a mail circulating the EC as well as the screen shot, showing that EC was downloaded on that day.

9. It is also the case of the respondent that as per the stipulated condition in EC they had, vide letter dated 30.01.2018, requested District collector, Bhavnagar to display a copy of the same in his office for public information, for a period of thirty days. The respondent had further submitted a copy of EC, vide letter dated 30.01.2018, to Gram Panchayat Dayal village, Gram Panchayat Kalsar village, Gram Panchayat Nicha Kotda village and Gram Panchayat Uncha Kotda village (Annexure R-1/3)

10. Further, the case of the respondent is that they had advertised the grant of EC in two local newspaper i.e. Saurashtra Samachar and Awadh Times, in vernacular and English languages respectively, on 31.01.2018 (Annexure R-1/4). The present appeal had been filed on 02.05.2018 and therefore the same is time barred as having been filed beyond the prescribed period of thirty days and also the extended period of sixty days. The respondent has submitted that delay beyond a period of ninety days is not condonable by the Tribunal.

11. Without prejudice to what has been stated herein above, respondent No. 1 has submitted that no sufficient cause has been shown by the appellant for condoning the delay. Further it is submitted that condonation of delay is not a matter of right. In the case of Save Mon Region Federation (Supra) the Tribunal has held that if the appeal is filed beyond thirty days, it is obligatory upon the applicant to show sufficient cause for the delay in filing the appeal. Instead of showing any sufficient cause, the appellant has concealed material facts with respect to communication of the order of grant of EC, from this Tribunal and the appeal deserves to be dismissed on this ground alone.

12. It is submitted by the respondent that the appellant has made a false averment that it had received the letter of 30.01.2018, only on 10.02.2018. According to the respondent, on enquiry from the concerned post office it has been found that the letter was delivered on 07.02.2018. The confirmation letter given by Rampara Post Office, stating that the letter dated 30.01.2018 was received by the appellant on 07.02.2018 has been filed on record (Annexure R-1/5). The appellant has even filed an affidavit to support the incorrect information provided in the application for condonation of delay. It has also been submitted that the appellant has not approached the Tribunal with clean hands.

13. Besides, it is also the case of respondent that the appellant had been well aware of the mining project and they had been actively participating in the public hearing as well as the EC proceedings. The appellant has stated that vide letters dated 06.06.2016 and 15.06.2016, they had raised several queries on perusal of the executive summary. The same queries have been reiterated in the appeal also.

14. The appellant had, on 20.12.2017, filed an application under Section 14 and 15 of the NGT Act, 2010 with respect to another mine with the prayer that the respondent be directed to stop the activities which are being carried out by them for purpose of grant of EC. The said application was dismissed on 29.01.2018.

It has also been submitted by respondent No. 1 that the mining area does not fall under CRZ and this fact was not suppressed by them in Environment Impact Assessment Report. The said issue had been dealt with by Expert Appraisal Committee in various meetings, from time to time, before recommending the grant of EC. The appellant is intentionally misleading the Tribunal by providing false information that mining lease area falls within CRZ.

15. Ministry of Environment, Forests and Climate Change, respondent No. 2 has also filed their objection to the application seeking condonation of delay. It has been submitted that the appeal is barred by limitation and therefore it is neither maintainable nor sustainable in law. Further, it has been submitted that M/s. Ultratech Cement Limited was granted EC on 25.01.2018 by the Ministry for Limestone Mine and the same was uploaded on their website on 29.01.2018, as per the information available with National Informatics Centre. The prescribed period of thirty days to file an appeal, commences from the date on which the order or decision was communicated, as stipulated Under Section 16 of the NGT Act, 2010, has expired long ago, in March, 2018 itself.

16. It has also been submitted by respondent No. 2 that this application is an abuse of process and has the potential to delay the completion of the project which had been granted environment clearance and thereby causing irreversible loss and damage to the larger public interest. The application is grossly time barred and deserves to be rejected.

17. The respondent Ministry has submitted that when on one hand, due regard is to be given to the Environmental laws for environment protection, due concern and regard is also to be given to all such attempts which are not bona fide. In fact, it amounts to abuse of process of law, thereby resulting in an irreversible damage to such developmental projects and where the delay in completion of such development project on account of time or on account of funds because of the phenomenal escalations in cost, necessarily causes irreversible colossal damage to the larger public interest.

18. The respondents have submitted that in matters of condonation of delay, it is a settled position that every days delay has to be explained and a person who seeks the exercise of discretion to condone the delay in his favour, cannot run away by making a mere general statement or mere allegation un-supported by document or mere passing of laches upon his Advocate. Therefore, the respondents have prayed that the application to condone the delay is not maintainable and have sought court intervention by way of dismissal of application, in the interest of justice.

19. Before adjudicating on the rival contentions, it would be appropriate to reproduce hereunder the relevant provision of law i.e. Section 16 of the National Green Tribunal Act 2010:

Any person aggrieved by:

(a) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986);

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:

(b).......

(c).......

(d).......

(e).......

(f).......

(g)......

(h).......

(i) .......

(j)........

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."

20. From the said provision it is revealed that the period of limitation is to be computed from the date on which the order/decision is communicated. In the case of Save Mon Region Federation & Anr. Vs. Union of India & Ors., in Para 19, the word communication has been interpreted as follows:

"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."

21. The case of the appellant is that the letter sent by respondent No. 1 M/s. Ultratech Cement Limited on 30.01.2018, communicating that the EC has been granted to it was received by them on 10.02.2018. Therefore, it had been submitted that the appeal has been filed within 90 days (30 + 60 days) and there is sufficient cause for filing the same within the extended period of 60 days. As per the proviso to Section 16, the Tribunal may exercise its discretion and condone the delay in filing the appeal after the statutory period of 30 days. On the other hand, respondent No. 1 has submitted that in the present case EC was granted on 25.01.2018 and was uploaded on 29.01.2018. It could also be downloaded on 29.01.2018.

22. Therefore the questions which have emerged for consideration in this case is:

a. As to whether the appeal was filed beyond 90 days from the date of communication regarding issuance of EC.

b. If not, whether there was sufficient cause for the appellant which prevented him from filing the appeal beyond 30 days but before the extended period of 60 days.

23. As mentioned above, the contention of the appellant is that the letter communicating about the grant of EC was received on 10.02.2018 whereas according to the respondent the same was received on 07.02.2018. As per the information given by concerning post office, namely, Rampura Post Office the letter dated 30.01.2018 was received by the appellant on 07.02.2018. A letter of confirmation in this regard was issued by the post office which has been placed on record. (Annexure R1/5). Therefore the information given by the appellant with regard to the receipt of the letter dated 30.01.2018 is incorrect and false.

24. Apart from it, it has been laid down by the Tribunal in the case of Save Mon Region Federation (Supra) that the method of communication about the grant of EC can be done in either of the following modes.

"1. The day on which Ministry of Environment and Forest shall put complete order of EC on its website and the same can be downloaded without any hindrance or impediment.

2. The limitation may also trigger from the day on which the project proponent uploads the EC order with its environmental condition and safeguards upon its website as well as publish it in the newspaper as prescribed under regulation 10 of the EC Regulation, 2006.

3. 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 in the manner afore-indicated."

25. The factual position with regard to communication of granting the EC which boils down in this case is that:

1) After grant of EC on 25.01.2018, it was uploaded on the website of MoEF & CC on 29.01.2018. The EC could be downloaded, without any hindrance, on 29.01.2018 itself. This fact has been corroborated by email dated 29.01.2018 (Annexure R1/1) which was sent by the Environment Consultant of respondent No. 1 informing about the grant of EC. The respondent has also placed on record an affidavit of their employee (Annexure R1/2) who had downloaded the EC on 30.01.2018 and had sent an email circulating the same, as well as, screenshot showing that the EC was downloaded on that day.

2) As per the conditions stipulated in EC the respondent had, vide letter dated 30.01.2018, requested District Collector, Bhawnagar to display a copy of the same in his office for public information for a period of 30 days. Similarly the respondent had submitted a copy of EC, vide letter dated 30.01.2018 (Annexure R1/3) to Gram Panchayat Dayal Village, Gram Panchayat Kalsar Village; Gram Panchayat Nicha Kotda village and Gram Panchayat Uncha Kotda village.

3) The respondent had also advertised the EC in two local newspapers namely Saurashtra Samachar and Awadh Times, on 31.01.2018 (Annexure R1/4)

26. This appeal has been filed on 02.05.2018. According to the principle laid down in the case of Save Mon Region Federation (Supra) out of the 3 modes, as aforementioned, the earliest in point of time shall be the relevant date and the delay has to be determined with reference to the facts of each case. In the instant case EC was granted on 25.01.2018 and the same was uploaded on the website of MoEF & CC. It was downloaded, without any hindrance, on 29.01.2018. This fact has been well established by the documentary evidence placed by the respondent. Therefore, the contention raised by the appellant that the EC was not communicated to him prior to 10.02.2018 is contrary to the material on record. Moreover, the respondent had also adopted the other modes, by informing the District Collector, Bhawnagar to display the copy of EC for public information; also sent copies of EC to the respective Gram Panchayats and the project proponent had advertised the same in two local newspapers, namely, Saurashtra Samachar and Awadh Times on 31.01.2018.

27. Therefore, in the instant case the EC was put in public domain on 29.01.2018 and the same could be downloaded on the same day. The respondent had also issued the advertisement in two local newspapers, vernacular as well as in English, on 31.01.2018. Consequently, the grant of EC can be said to be in public domain and communicated on 29.01.2018. The limitation would commence and be computed from the communication which is in earliest point of time and it is from that date the limitation would trigger. In the present case the appeal has been filed on 02.05.2018, much beyond the period of 90 days from the date of communication of EC. Therefore, the issue as to whether the appeal has been filed within the period of limitation has to be decided against the appellant.

28. Even otherwise and also after considering the contention raised by the appellant in respect of sufficient cause for not filing the appeal within limitation, we are of the considered view that no case is made out in his favour. The only ground given by the appellant, for sufficient cause in filing the appeal beyond limitation, is that after having learnt about grant of EC to respondent No. 1, they started collecting documents and contacting the counsels for filing the same. A sufficient cause in filing an appeal has to be explained on day to day basis and details are to be given which prevented the appellant from filing an appeal within time. Merely by saying that the appellant had collected documents and contacted the counsels for filing an appeal does not in any manner justify the cause, much less to say sufficient cause in filing an appeal beyond the period of limitation. Therefore, on this count also the appellant has failed to give any justification for filing the appeal after a long delay. The application for condonation of delay is devoid of any just ground.

29. Coming back to the provision of law under Section 16 of the NGT Act 2010, particularly the proviso appended to it, it is pertinent to note here that the Tribunal had while interpreting it, held, in the case of Nikunj Developers Vs. State of Maharashtra (M.A. No. 247 of 2012) : 2013 ALL (I) NGT (1) PB 40, that the Tribunal has no jurisdiction to condone the delay under Proviso to Section 16 of the NGT Act 2010 beyond the period of 90 days even if sufficient case is shown and the provisions of Limitation Act, including Section 5, are excluded.

30. Therefore the application of condonation of delay deserves to be dismissed only on the ground that the Tribunal has no jurisdiction to condone the delay which is in excess of 90 days, computed from the date of communication.

Since the application for condonation of delay has been dismissed, the appeal and application for stay (M.A. 703/2018) does not survive for consideration.

31. Consequently, both the applications and the appeal are dismissed, with no order as to cost.