SRIDEVI DATLA vs. UNION OF INDIA

1 REPORTABLE IN THE SUPREME COURT OF INDIA (CIVIL APPELLATE JURISDICTION) CIVIL APPEAL NO. 3136 OF 2020 SRIDEVI DATLA …APPELLANT (S) VERSUS UNION OF INDIA AND ORS. ….RESPONDENT(S) JUDGEMENT S. RAVINDRA BHAT, J. 1. The appellant is aggrieved by an order of the National Green Tribunal 1 (hereafter referred to as “the NGT” ) and has, therefore, approached this Court under Section 22 of the NGT Act. The NGT rejected her appeal, preferred to it against the environmental clearance for construction of the Greenfield International Airport, Bhogapuram, Vishakapatnam, which had been sought for by the fifth respondent. 2. The facts are simple: the fifth respondent (hereafter called “the Project Applicant”) proposed the construction of a new Greenfield international airport. As was required by law and extant statutory notifications, it applied to the Ministry of Environment, Forests and Climate Change (hereinafter, the “MoEF”) to seek environmental clearance. The MoEF, after following the prescribed procedure, which included ascertaining the views and objections of the concerned parties, the general 1 Dated 31.07.2020 2 public etc, indicated its approval by an order dated 14.08.2017. In terms of Section 19 of the NGT Act, the approval was posted on the website of the MoEF on 14.08.2017. Concededly, the Project Applicant published the approval in an English daily on 13.09.2017. 3. The appellant preferred her appeal to the NGT on 13.11.2017. Along with the appeal, she preferred an application for condonation of delay in approaching the NGT, given the stipulation of Section 19 that the appeal had to be preferred within 30 days from the date of communication of the order impugned. She explained that since the clearance and related documents were voluminous and the matter required some technical expertise, requiring the papers to be forwarded to experts and lawyers in Delhi, and the inter se communication delay, the NGT needed to condone the delay, in the interests of justice. After considering the submissions made by the appellant as well as the Project Applicant, which opposed the application for condonation of delay, the NGT, by its impugned order, rejected the appellant’s application and consequently the appeal as well. 4. The appellant’s arguments before this Court are mainly twofold: that the requirement of Section 16 is to “communicate the order to the concerned parties as well as the public and that a meaningful interpretation should be given to the provision” . It was emphasised in this context that communication means not merely the publication on the Central Government’s website, but also dissemination of the news or the decision to the affected parties. Learned senior counsel for the appellant – Ms. Anitha Shenoy, in this context, relied upon the terms contained in the environmental clearance/approval given by the MoEF, especially those which obliged the Project Applicant to intimate the decision in dailies having local circulation in the vernacular. She also relied upon the stipulations in the environmental clearance (“EC”) which prescribed that the successful project applicant had to, in continuation to so publishing the decision or intimation in local newspapers, also ensure that the 3 decision was forwarded to local communities through the Panchayats etc. for dissemination. 5. It was pointed out that the object of these conditions should be construed as part of a larger scheme of the Act to communicate every decision. The appellant argued that if a contrary interpretation were to be accepted, the appeal given by the statute would be meaningless as most often, large projects which involve either displacement of people or which affect habitats and have the tendency to damage or at least cause significant adverse impact upon the environment would not be considered on its merits by the NGT since people and neighbourhoods cannot be presumed to have knowledge of deliberations in New Delhi. 6. It was also argued on behalf of the appellant that in the circumstances of the present case, at least the appeal could not be said to be time barred. It was argued that the date for reckoning (limitation) is from 14.08.2017, when the MoEF uploaded the decision on its website. The ninety-day period within which appeal was to be filed, expired on 12.11.2017, which was a Sunday. It was submitted that under Section 10 of the General Clauses Act, if any period prescribed ends on a Sunday or a day on which the Court or the Tribunal does not function, the next day should be considered as the terminus quo in point of time. Consequently, it was submitted that the appeal should be considered as within time and should have been entertained on merits. 7. Lastly, it was argued that the NGT’s opinion that sufficient cause was not shown while seeking condonation of delay is erroneous. Learned counsel highlighted that any proposal as well as clearances where voluminous documentation is involved, or if any individual or entity is aggrieved, or adversely affected, the only remedy provided is by way of an appeal. To substantiate the grounds of appeal, it would be essential that in many instances, expert advice is obtained based on which the grounds of appeal can be prepared and urged. If the issue were to be considered in this perspective, the explanation provided by the appellant in her application seeking condonation of delay could not be considered unreasonable and in fact amounts to 4 sufficient cause. Learned counsel relied upon a previous order of the NGT in Smt. 2 Padmabati Mohapatra v. Union of India . Reliance was also placed on the judgment of the Nagpur High Court, reported as Rambir Narhargir Gosai v. Prabhakar 3 Bhaskar Gadhaway. 8. On behalf of the Union of India, the ASG, Mr. K.M. Natraj argued that the impugned order does not require to be disturbed. He pointed out that the impugned order had noticed that the appellant made no complaint that the MoEF had put up the decision to grant environmental clearance on its website on 14.08.2017 or that having uploaded the decision it could not be viewed publicly in an uninterrupted manner. He further submitted that the finding that the first date when the decision was communicated by the MoEF on its website is determinative for the purpose of reckoning limitation rather than any other later point in time. It was further emphasised on behalf of the UOI that the need to publish environmental clearances under the Environment Impact Notification 2006, framed under the Environment Protection Act, 1986 is now known to all. The proposal of the Project Applicant clearly fell within the sweep of the Environment Impact Notification in Item No.7(a) to the Schedule (to the notification). 9. It was submitted on behalf of the UOI that in terms of the Environment Impact Assessment Notification, 2006, the clearance had to be published within seven days from the date of uploading. The publication of Environment Clearance dated 14.08.2017 was done on 21.08.2017. Thus, the appellant’s plea that she came to know of the environmental clearance on 24.08.2017 is baseless. The learned ASG relied 4 upon a decision of the NGT in Save Mon Region Federation v. Union of India in this regard. 10. Learned ASG lastly argued that by virtue of Section 33 of the Act, the provisions of all other laws stand overridden and consequently, the question of 2 2013 SCC OnLine NGT 2177 3 AIR 1955 Nag 300 4 2013 SCC OnLine NGT 2511 5 extending the period of limitation by reference to Section 5 of the Limitation Act would not arise. He further urged that the period of limitation prescribed is actually 30 days for the filing of an appeal, and that further period of 60 days is only by way of acceptance of application for condonation of delay. Thus, no appeal is maintainable after the expiry of 90 days. It is pointed out that in the present case, the 90 day period in fact ended a day prior to the filing of the appeal; it was, therefore, clearly time-barred. 11. Mr. Mukul Rohatgi, learned senior counsel appearing for the Project Applicant supported the submissions of the Union and argued that the concerned Project Applicant, i.e. M/s Bhogapuram International Airport Corporation Ltd., has been conceived in public interest and in replacement of the existing Vishakhapatnam Airport which is primarily a defence airport. Learned counsel relied upon the decision of this Court in H. Dohil Construction Company Private Limited v. Nahar Exports 5 Limited to the effect that any aggrieved litigant should be vigilant in the exercise of his rights and that he cannot claim the exercise of discretion for condoning any delay as a matter of right. Reliance was also placed upon the decision in BRS Steels Private 6 Limited v. State of Rajasthan . In this regard, it was submitted that the appeal before this Court which purports to be under Section 22 of the Act is confined to the grounds specified under Section 100 of the CPC, which is only if the Court is satisfied that the case involves a substantial question of law. 12. Lastly, it was submitted by learned senior counsel that the NGT Act correctly surmised in the circumstances of the case that the appellant had adopted a casual approach and did not believe the contents of the application for condonation of delay. Learned counsel in this context argued that the appellant is an interested person in the sense that her lands had been notified for acquisition and was therefore not uninformed or incapable of receiving appropriate legal advice. 5 (2015) 1SCC 680 6 (2012) 6 SCC 782 6 Analysis and Findings

7 Of the NGT Act 7

14. Environmental disputes are complicated and entail expertise in diverse fields (such as ecology, chemistry, biology, economics, administration, management, law etc.) for their determination in an effective and speedy fashion, that is not possible within the regular judicial and administrative set up in India. In other words, environmental disputes relating to forests, biodiversity, air and water are complicated in nature; resolving and expeditiously disposing of these cases is not possible without a separate special court. Environmental courts or tribunals have been a long-standing demand for other reasons too. For effective prevention and control of environmental protection, there was an urgent need for a separate environmental court or tribunal to adjudicate without much delay. India is a party to the United Nations Conference on the Human Environment (known as the Stockholm Conference), 1972 where it made commitments relating to safeguarding of natural resources and developing international law, and to provide compensation to victims of pollution and other environmental degradation. India is also a signatory to the Rio Declaration adopted at 8 the United Nations Conference on Environment and Development at Rio de Janeiro in 1992. The Rio Declaration states that participating states must make suitable environmental legislation regarding effective access to the people, to judicial and th administrative proceedings, including remedies. The Law Commission’s 186 report recommended that the Union government should establish and constitute separate Environmental Courts in each state, to deal with complex, specialised issues concerning the environment. It was in this background that Parliament enacted the NGT Act. The Act amends various other enactments and adds provisions to them, for appeal before the NGT. These are incorporated in Section 33-B of The Water (Prevention and Control of Pollution) Act, 1974; Section 13-A of The Water (Prevention and Control of Pollution) Cess Act, 1977; Section 2-A of The Forest (Conservation) Act, 1980; Section 31-B of The Air (Prevention and Control of Pollution) Act, 1981; Section 5-A in the Environment (Protection) Act, 1986 and Section 52-A in the Biological Diversity Act, 2002.

8 2019 SCC OnLine SC 1510 9 (2019) 15 SCC 401 9

10 That provision is as follows: 29. Savings .— (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of 1872). (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.” 10 prescribed under special laws, appeals that exceed the period granted and are within the extended period of limitation in the special law, can be entertained at the discretion of the tribunal, or court concerned and the Limitation Act would not apply 11 upon expiry of such extended period. This court holds that there is merit in the contention of the Union that the provisions of the Limitation Act are inapplicable. This is, however, not dispositive of the issue; the next question is whether there is merit in the appellant’s argument that the NGT should have considered the issue of whether the appeal was filed within the extended period prescribed under the proviso to Section 16, i.e. within sixty days after the expiration of the initial 30 day period, required in the main provision. 19. The appellant argues that since there is no indication to the contrary; the appeal is to be considered as having been filed within the extended period of 60 days, since the last (of the 60 days) was a Sunday (12.07.2020). The appellant relied on Section 10 of the General Clauses Act, for this purpose. The respondents, notably the Union, opposed this argument. 12 20. Section 10 of the General Clauses Act, 1897 stipulates that when the last date for doing something falls on a public holiday, the act “shall be considered as done..” if it “is done or taken on the next day afterwards on which the Court or office is open”. This provision applies to all Central Acts enacted after the said Act was brought into force. The scope of this provision was considered by this Court in H.H.

12 “ 10. Computation of time .— (1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies. (2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887.” 11

14 Manohar Joshi v. Nitin Bhaurao Patil (1996) 1 SCC 169; Mohd. Ayub v. State of U.P. , (2009) 17 SCC 70. 15 (1988) 2 SCC 142 12

16 (2013) 12 SCC 649 17 State of Nagaland v. Lipok Ao (2005) 3 SCC 752; New India Insurance Co. Ltd. v. Shanti Misra (1975) 2 SCC 840; N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123; State of Haryana v. Chandra Mani (1996) 3 SCC 132; and Tehsildar (LA) v. K.V. Ayisumma (1996) 10 SCC 634. 18 (2010) 6 SCC 786 13

19 (2012) 5 SCC 157 14 and judgments have shown that the exercise of discretion does at times, call for appellate scrutiny by this court. This is one such. The appellant pleaded that since the documentation attendant to the clearance granted to the Project Applicant was voluminous, and expert as well as professional legal advice of the kind necessary to approach the NGT was not available in the State of Andhra Pradesh, the procuring of relevant documents, and correspondence with counsel in Delhi and drafting of the appeal entailed some delay. 29. This court is of the opinion that there is merit in the appellant’s argument. The respondents, especially, the project applicant, had urged that the appellant is an interested party, and cannot be called a public-spirited citizen, because she had opposed acquisition of land for the airport and therefore, was able to access legal advice at the High Court stage. There is, in our opinion, nothing in the NGT Act which excludes parties who would be directly affected by a project, that has environmental repercussions, from accessing the tribunal (NGT). Likewise, characterizing the nature of legal advice that can be accessed for challenging land acquisition, as similar to a challenge to environmental clearance which involves application of mind to technical issues in a detailed manner, would be unfair and simplistic. Scientific or technical support – apart from expert professional legal advice is necessary, if the NGT were to be approached. In these circumstances, this court is of the opinion that given the mandate of the NGT Act, the exercise of discretion, as was done in this case, to reject the appeal by dismissing the application for condonation of delay, on the ground that no sufficient cause was shown, was erroneous and based on a narrow reading of the law. An appeal to the NGT in such matters is no ordinary matter; it has the potential of irrevocably changing the environment with the possibility of likely injury. Application of judicial mind by an independent tribunal in such cases, at the first appellate stage, is almost a necessity. 30. In view of the foregoing findings, this court is of the opinion that the impugned order of NGT has to be and is, therefore set aside. The delay in filing the appeal 15 before the NGT is hereby condoned; the parties shall now appear and proceed to argue the appeal on its merit, which shall then be disposed in accordance with law. The appeal is allowed. There shall be no order on costs. ............................................J [L. NAGESWARA RAO] ..................................................J [S. RAVINDRA BHAT] New Delhi, March 02, 2021.