1 ASWP7050.10 srp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7050 OF 2010 1. The Sarpanch, Grampanchayat Tiroda & Ors. ... Petitioners Vs 1. The Ministry of Environment & Forests & Ors. ... Respondents Mr. M.M. Vashi i/b M/s. M.M. Vashi & Associates for the Petitioner. Mr. D.J. Khambatta, Addl. Solicitor General with Gautam Ankhad and Jaydeep Deo for the Respondent No.1. Ms. Ashvini A. Takalkar i/b N.P. Deshpande for Respondent No.2. Mr. S.R. Nargolkar, Addl.G.P. for the Respondent Nos.3 & 4. Mr. Rafiq Dada, senior counsel with Mr. Mustafa Doctor i/b Mr. S. Pradhan and Mr. Firoze Daruwala of J. Sagar Associates for the Respondent No.5. Mr. Shyam Mehta with Mr. Walter Lewis i/b M/s.Mulla & Mulla and Craigie, Blunt & Caroe for the Respondent No.6. CORAM : MOHIT SHAH, C.J. & S.J. VAZIFDAR, J. TUESDAY, 1ST FEBRUARY, 2011. P.C. : 1. What is challenged in this petition under Article 226 of the Constitution, is the order dated 11th September, 2009, of the National Environment Appellate Tribunal, rejecting the Appeal preferred by the petitioners (the Sarpanch and two local residents of village Tiroda) on 2 ASWP7050.10 the ground that it was barred by limitation. 2. The Appeal was preferred for challenging the grant of environment clearance by the Ministry of Environment & Forests, by order dated 31st December, 2008, in favour of respondent No.5. By the said order, the Ministry of Environment & Forests granted clearance to respondent No.5 for iron mining in 12.16 hectares out of 34.4812 hectares in village Tiroda in Sindhudurg District in the State of Maharashtra. The clearance letter provides that based on the information submitted by respondent No.5, the Ministry of Environment & Forests has accorded environmental clearance to the above project under the provisions of the EIA Notification dated 14th September, 2006, subject to compliance of the various specific and general conditions running into 36 specific conditions and 16 general conditions. 3. The Appeal was preferred on 10th August, 2009 and by the impugned order, the National Environment Appellate Tribunal constituted under the National Environment Appellate Authority Act, 1997, rejected the Appeal on the ground that the Appeal was received 3 ASWP7050.10 by the Authority on the 222nd day from the date of the environment clearance and that, therefore, it was beyond the jurisdiction of the Environment Authority to entertain the Appeal for disposal. The Appeal was, accordingly, rejected as time-barred. 4. The petitioner’s case is that there are several infirmities in the grant of the clearance. There is also non application of mind. For instance, although village Tiroda is in Sawantwadi Taluka of Sindhudurg District, the Ministry of Environment & Forests has made a reference to Vengurla Taluka which is factually incorrect. 5. The learned counsel for the petitioners has submitted that the period of limitation for filing the appeal under section 11 of the said Act is 30 days from the date of the order and the Appellate Authority has the power to entertain the appeal after expiry of the said period of 30 days, but not after 90 days from the date aforesaid, if the Authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. It is submitted on behalf of the petitioners that the 4 ASWP7050.10 environmental clearance was granted, subject to various specific and general conditions, including the following general conditions :- “(xiv)A copy of clearance letter will be marked to concerned Panchayat/local NGO, if any, from whom suggestion/representation has been received while processing the proposal. (xv) State Pollution Control Board shall display a copy of the clearance letter at the Regional Office, District Industry Centre and Collector’s office/Tehsildar’s office for 30 days. (xvi) The project authorities shall advertise at least in two local newspapers widely circulated, one of which shall be in the vernacular language of the locality concerned, within 7 days of the issue of the clearance letter informing that the project has been accorded environmental clearance and a copy of the clearance letter is available with th State Pollution Control Board and also at web site of the Ministry of Environment and Forests at http://envfor.nic.in and a copy of the same shall be forwarded to the Regional Office of the Ministry located in Bangalore.” 6. It is submitted that the above three conditions are cumulative and non-compliance of any of these conditions would not only be a sufficient ground for explaining the delay in filing the appeal, but would also make the environmental clearance itself not operative. In any case, the period of limitation begins to run upon compliance of the above conditions. 5 ASWP7050.10 7. As far as condition no.(xiv) is concerned, it is submitted that the copy of the clearance letter was not marked by the Ministry of Environment & Forests to Tiroda Grampanchayat. Although respondent No.5 has alleged that a representative of respondent No.5 had approached petitioner No.1 – Sarpanch of village Tiroda to hand over a copy of the clearance letter and that petitioner No.1 had refused to accept the same, for the first time affidavit to that effect is filed only on 26th October, 2010. Even according to respondent No.5, a copy of the clearance letter along with a copy of the covering letter was sent on 10th September, 2009, by registered post A/D. 8. As far as condition no.(xv) is concerned, Maharashtra State Pollution Control Board has not filed any affidavit indicating compliance with condition No.(xv). On the contrary, in the affidavit filed on behalf of Maharashtra State Pollution Control Board, no averment is made about compliance of condition no.(xv). 9. Coming to condition no.(xvi), learned counsel for the petitioners states that even according to the respondents, the 6 ASWP7050.10 advertisement in the local newspapers about the environmental clearance accorded to respondent No.5 was published in the newspaper dated 27th March, 2009, which only stated that a copy of the clearance letter was available with the Maharashtra State Pollution Control Board and also on the website of the Ministry of Environment & Forests. However, when the petitioners approached a computer literate person for the purpose of accessing the clearance letter on the website of the Ministry of Environment & Forests at http://envfor.nic.in and the State Pollution Control Board, the clearance letter was not accessible on the website. In fact, the State Pollution Control Board has admitted that the clearance letter was not displayed on the website. The petitioners could access the clearance letter on the website of the Ministry of Environment & Forests only on or about 13th May, 2009. This statement was specifically made in the application for condonation of delay made before the Appellate Tribunal. However, through inadvertence, in the Appeal Memo it was stated that the clearance letter was accessed on the website in the second week of April, 2009. It is, therefore, vehemently contended by the learned counsel 7 ASWP7050.10 for the petitioners that the 90 day period ought to be computed from 13th May, 2009 and, therefore, the appeal was required to be filed by 12th August, 2009. The appeal was filed on 10th August, 2009 and was, therefore, filed within the period of limitation. It is also contended that these facts could not be brought to the notice of the Appellate Authority, as the petitioners were not given an opportunity of hearing before dismissing the appeal as time-barred. 10. It is submitted in the alternative that even if the appeal was time-barred before the National Environment Appellate Tribunal, the petitioners are entitled to challenge the environmental clearance on merits before this Court in a petition under Article 226 of the Constitution and that the petitioners have placed sufficient material on record to press this challenge seriously. An endeavour was also made to show from the affidavit of the Maharashtra State Pollution Control Board that respondent No.5 has violated some of the conditions of the environmental clearance letter dated 31st December, 2008. 11. On the other hand, Mr. Rafiq Dada, learned senior counsel for respondent No.5 has opposed the petition and supported the impugned 8 ASWP7050.10 communication dated 11th September, 2009 from the National Environment Appellate Tribunal informing the learned advocate for the petitioners that the appeal was rejected as time-barred. It is submitted that the appeal was filed on the 222nd day from the date of the environment clearance and the National Environment Appellate Tribunal had no jurisdiction to condone the delay beyond 60 days after expiry of the limitation period of 30 days. In support of this contention, strong reliance has been placed on the decision of the Apex Court in Raja Harish Chandra Raj Singh vs. Deputy Land Acquisition Officer & Anr., AIR 1961, SC 1500. 12. It is further submitted on behalf of respondent No.5 that in any view of the matter, respondent No.5 has complied with all the conditions which were required to be complied with by respondent No.5. As far as condition No.(xvi) is concerned, respondent No.5 received the environmental clearance in the last week of February, 2009 and, therefore, the advertisement was published in two local newspapers in wide circulation on 27th March, 2009, one in an English newspaper and one in the vernacular language of the locality. It was specifically mentioned in the said advertisement that the 9 ASWP7050.10 environmental clearance was displayed on the concerned website of the Ministry of Environment & Forests and was also available with the Maharashtra State Pollution Control Board. If at all the petitioners could not access the said clearance letter on the website of either of the authorities, nothing prevented the petitioners from approaching the said authorities or respondent No.5 for obtaining a copy of the clearance letter. It was finally submitted that assuming that the petitioners are right in their case that for the first time the petitioners could access the clearance letter on the website of the Ministry of Environment & Forests on 13th May, 2009, the limitation period of 30 days expired on 12th June, 2009 and the petitioners have not explained the delay for the period from 13th June, 2009 to 10th August, 2009. 13. The learned counsel for the respondent No.6 adopted the arguments of respondent No.5. 14. In rejoinder, Mr. Vashi, learned counsel for the petitioners submitted that the petitioners had clearly pointed out in their 10 ASWP7050.10 application for condonation of delay in the appeal before the National Environment Appellate Tribunal that the appellants and other villagers discussed the issue of grant of clearance and further course of action and after discussion, decided to challenge the environmental clearance granted to the project. Thereafter the appellants were in search of a proper person in Delhi who is practicing environmental law and could file an appeal before the National Environment Appellate Tribunal. The appellants then took the address and contact numbers of the advocates in Delhi, but then it was difficult for the appellants to raise funds to file the appeal before the Appellate Authority because huge expenses would be required to be incurred for travelling to and fro Delhi and also to pay the professional fees. The learned counsel for the petitioners submitted that the aforesaid explanation given by the appellants was enough to prove that sufficient cause was shown by the petitioners and the National Environment Appellate Tribunal ought to have condoned the delay and heard the appeal on merits. 15. As far as the Ministry of Environment & Forests is concerned, 11 ASWP7050.10 learned Additional Solicitor General Mr. Khambatta supported the impugned orders, but submitted that the Ministry would abide by the directions of this Court. The learned Addl. Solicitor General, however, pointed out that now the National Environment Appellate Authority Act, 1997 has been repealed by the National Green Tribunal Act, 2010. As per section 38 of the 2010 Act, the National Environment Appellate Authority established under the 1997 Act shall, on establishment of the National Green Tribunal under the 2010 Act, stand dissolved and all cases pending before the National Environment Appellate Tribunal shall stand transferred to the National Green Tribunal. It is further stated that the Chairperson of the National Green Tribunal has been appointed on 18th October, 2010, but the Vice Chairman and other Members of the Tribunal are yet to be appointed. 16. Having heard the learned counsel for the parties, we are of the view that the National Environment Appellate Authority did not consider the question of limitation in its proper perspective. In the first place, the Appellate Authority did not give any opportunity of hearing to the petitioners herein – appellants in the appeal to show 12 ASWP7050.10 cause why the Appeal should not be dismissed on the ground of limitation. If such an opportunity had been afforded to the petitioners, they could have pointed out all the facts and submissions which are brought to our notice in this Writ Petition. Section 11 of the said Act reads as under :- “11. Appeals to Authority.- (1) Any person aggrieved by an order granting environmental clearance in the areas 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 may, within thirty days from the date of such order, prefer an appeal to the Authority in such form as may be prescribed: Provided that the Authority may entertain any appeal after the expiry of the said period of thirty days but not after ninety days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) For purposes of sub-section (1), “person” means – (a) any person who is likely to be affected by the grant of environmental clearance; (b) to (d) ...... (e) any local authority, any part of whose local limits is within the neighbourhood of the area wherein the project is proposed to be located. (3) On receipt of an appeal preferred under sub-section (1), the Authority shall, after giving the appellant an opportunity of being heard, pass such orders, as it thinks 13 ASWP7050.10 fit. (4) The Authority shall dispose of the appeal within ninety days from the date of filing the appeal; Provided that the Authority may for reasons to be recorded in writing dispose of the appeal within a further period of thirty days.” 17. Thus, the Appellate Tribunal proceeded on the basis that the period of limitation is to be computed from the date of the order i.e. 31st December, 2008. 18. As per the settled legal position and as enunciated in Raja Harish Chandra Raj Singh vs. Deputy Land Acquisition Officer & Anr., AIR 1961, SC 1500, while computing limitation which begins to run from the date of the order or the award, it is only after the order or the award is communicated to or is made known to the affected parties that the period of limitation can begin to run. Even if a public authority has taken a decision or passed an order, the order does not become operative, if it merely remains in the drawer of the authority. The making of the order must mean either actual or constructive communication of the order to the parties concerned. Communication of the order either actually or constructively is a requirement of fair- 14 ASWP7050.10 play and natural justice. Ofcourse, Mr. Rafiq Dada, the learned senior counsel for the respondent No.5 would submit that the moment respondent No.5 published the advertisement in the local newspapers on 27th March, 2009 stating the environmental clearance has been granted by the Ministry of Environment & Forests in favour of the project of respondent No.5, the petitioners were posted with the knowledge about the environmental clearance and, therefore, the period of limitation must begin to run at least from 27th March, 2009. 19. While ordinarily this argument would have appealed to us, it cannot be overlooked that environmental clearance was granted subject to several conditions including specific conditions and general conditions. The petitioners could not be held to be constructively posted with the knowledge of all or any of those conditions. In fact, condition no.(xvi) mandated and, therefore, the advertisement itself mentioned that the environmental clearance was displayed on the website of the Ministry of Environment & Forests and the State Pollution Control Board. Hence the burden was on the respondents to show that the environmental clearance letter was displayed on the website of the said authorities. The clearance having been granted 15 ASWP7050.10 subject, inter-alia, to the conditions (xiv), (xv) and (xvi) specifying the mode of service/publication of the order, the order could come into effect only upon the compliance thereof. 20. Far from respondent No.5 having discharged such burden of proof, the affidavit on behalf of the Maharashtra State Pollution Control Board in terms states that the said clearance was not displayed on the website of the Maharashtra State Pollution Control Board nor has the Ministry of Environment & Forests come forward with a case that the clearance letter was displayed on the website of the Ministry of Environment & Forests prior to 13th May, 2009. Under the circumstances, we see no justification not to accept the petitioners’ case that the clearance letter displayed on the website of the Ministry of Environment & Forests could be accessed for the first time on 13th May, 2009. It is not necessary to rest our conclusion merely on the principles of fair-play and natural justice, because the Ministry of Environment & Forests, while granting the clearance on 31st December, 2008, itself had recognised the importance and necessity of informing the public at large about the clearance letter, inter-alia, by displaying the same on the website of the Ministry of Environment & 16 ASWP7050.10 Forests and making such clearance available with the State Pollution Control Board. 21. In the facts and circumstances of this case, when the Sarpanch and other villagers of Tiroda Grampanchayat have come forward with the grievances against grant of environmental clearance and it appears from the material on record that the clearance letter displayed on the website of the Ministry of Environment & Forests could be accessed only on or about 13th May, 2009, we are of the view that the period of limitation began to run only from 13th May, 2009. 22. Coming to the question whether the petitioners had shown sufficient cause before the Appellate Tribunal for the period from 12th June, 2009 to 10th August, 2009, it is true, as contended by the learned senior counsel for respondent No.5, that it would be for the Appellate Authority to consider the question whether sufficient cause was shown. However, when the Appellate Tribunal did not even give an opportunity of hearing to the appellant-petitioners and computed the period of limitation from 31st December, 2008 itself, instead of remitting the matter back to the National Environment Appellate 17 ASWP7050.10 Authority which has now been dissolved in view of repeal of the National Environment Appellate Authority Act, 1997, we have ourselves looked into the question whether the petitioners had shown sufficient cause for the delay of about 59 days in filing the Appeal before the National Environment Appellate Authority. 23. Having considered the explanation offered by the petitioners in their application for condonation of delay before the Appellate Tribunal and having heard the learned counsel for the parties for quite some time, we are of the view that the petitioners did show sufficient cause for the delay of about 59 days in filing the appeal. The petitioners are Sarpanch and residents of Tiroda, which is a small village. It is a village approximately forty kilometers away from the District place and approximately twenty five kilometers away from the Taluka place. The appellants had to discuss the matter with the other villagers and find out a proper person from Delhi. Filing of the appeal was obviously going to cost the petitioners by way of expenses towards professional fees and expenses of travelling to and fro Delhi. 24. In the facts and circumstances of the case, therefore, we are of 18 ASWP7050.10 the view that the explanation offered by the petitioners for the delay of about 57 days in filing the Appeal is required to be accepted and the matter is now required to be sent to the National Green Tribunal established under the National Green Tribunal Act, 2010, for decision on merits. If the Tribunal is not in a position to function right now on account of non appointment of the Vice Chairman/other Members of the Tribunal, the Government of India shall take expeditious steps to make the Tribunal fully functional. We hope and trust that this shall be done latest by 31st March, 2011. 25. In the result, the petition is allowed. The impugned communication/order dated 11th September, 2009, of the National Environment Appellate Authority is hereby quashed and set aside and the matter is remitted to the National Green Tribunal established under the National Green Tribunal Act, 2010 for hearing the petitioners’ appeal on merits, after treating the same as filed within the period of limitation. It will be open to the petitioners to move the Tribunal for expeditious hearing of the appeal considering the fact that respondent No.5 has already commenced mining activities in June, 2009. The National Green Tribunal, we are confident, will consider 19 ASWP7050.10 the petitioners’ request in proper perspective. 26. It is clarified that we have not gone into the merits of the controversy between the parties and that it is only the question of limitation which has been decided by this Court. 27. The Writ Petition, accordingly, stands disposed of. CHIEF JUSTICE S.J. VAZIFDAR, J.