Jain Steel & Power Ltd. vs National Environment Appellate ...
2009 Latest Caselaw 3381 Del

47.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 11176/2009

                                   Date of decision: 26th August, 2009

      JAIN STEEL & POWER LTD.                           ..... Petitioner
                      Through Mr. Sandeep Sethi, Sr. Advocate with
                      Mr. C. Mukund, Mr. Ashok Jain & Mr. Pankaj Jain,
                      Advocates.

                    versus

      NATIONAL ENVIRONMENT APPELLATE AUTHORITY &             ORS...
                                                            Respondents
                          Through Ms. Anjana Gosain, Advocate for
                          respondent No. 5-AAI.

      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

      1. Whether Reporters of local papers may be
         allowed to see the judgment?
      2. To be referred to the Reporter or not?
      3. Whether the judgment should be reported
         in the Digest?


                             O R D E R

%

1. The respondent No. 2, Mr. S.K. Naik, has filed an appeal under

Section 11 of the National Environment Appellate Authority Act, 1997

questioning the permission granted by the Ministry of Environment and

Forest to the petitioner-Jain Steel and Power Limited to set up a sponge

iron plant at village Durlaga District, Jharsududa, Orissa vide order dated

29th December, 2008. Section 11 of the National Environment Appellate

W.P. (C) No. 11176/2009 Page 1 Authority Act, 1997 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. Section 11 stipulates that appeal should be filed within 30 days of

the order but the tribunal has power to condone delay upto 90 days

thereafter. In the present case, the appeal was filed within this period of

90 days and was belated by 74 days. Respondent No. 2 had filed an

application for condonation of delay in filing of the appeal. Respondent

No. 2 in the said application had pointed out that copy of the impugned

order dated 29th December, 2008 was made available to him on 6th March,

2009 and after reading and considering the said order, the appeal was

filed on 29th March, 2009. As per Rule 5, every appeal should enclose a

copy of the impugned order. The respondent No. 2 in this regard had

rightly in the rejoinder relied upon the decision of the Supreme Court in

the case of D. Saibaba versus Bar Council of India and Another,

(2003) 6 SCC 186, inter alia, observing that mere knowledge of an W.P. (C) No. 11176/2009 Page 2 impugned order is not sufficient but the knowledge also must relate to

essential contents of the impugned order.

3. Learned counsel for the petitioner has submitted that the

respondent No. 2 had knowledge about the impugned order dated 29 th

December, 2008 as it was published in the newspapers on 7th January,

2009 and 12th January, 2009. Learned counsel for the petitioner

submitted that there was delay in applying for copy of the order as the

respondent No. 2 had knowledge of the order dated 29 th December, 2008

at least with effect from 23rd January, 2009. Reference in this regard is

made to letter dated 23rd January, 2009 written by respondent No. 2 to

the Director (Impact Assessment), Ministry of Environment and Forest.

The said letter reads as under:-

" When I spoke to you with regard to the way the Govt. of Orissa is pursuing a policy of indiscriminate industrialization in the Western Belt and brought to your notice that even Orissa Pollution Control Board has not been discharging its assigned role to prevent polluting the otherwise healthy and clean environment by inviting public opinion on the sitting of an integrated steel plant to be set up by the Jain Sponge Power Ltd. (JSPL) at Jharsuguda; you wanted me to send the photographs of the structures set-up by JSPL even prior to any clearance.

I am enclosing the original photographs for your information. I am also enclosing a copy of the report submitted by Times of India, Bhubaneswar dated 12.1.2009 wherein Executive Director of JSPL has been claiming that they have obtained the clearance from your department.

W.P. (C) No. 11176/2009 Page 3 As I have stated in my earlier letter, JSPL appears to have engaged a consultant of their own choice to give an environmental assessment impact report in their favour. It contains a lot of misleading information, a few of them have been referred to in my earlier letter. On hearing from you, I will give a complete list of them.

I hope the Ministry of Environment & Forest will come to the rescue of the area by preventing sitting of this unit at Jharsuguda, so close to the Airport and the newly created District Headquarter town of Jharsuguda whose prospective master plan envisages the inclusion of the JSPL site into the municipal limits."

4. The aforesaid letter written by the respondent No. 2 states that he

was enclosing a report published in the Times of India, Bhubaneswar

dated 12th January, 2009 wherein Executive Director of the petitioner had

claimed that he had obtained clearance from Ministry of Environment and

Forest. This letter does not show or disclose that the respondent No. 2

was aware of the order dated 29th December, 2008. This becomes

apparent from the entire contents of the said letter. Similar averments

were made by the respondent No. 2 in his rejoinder to the application for

condonation of delay. The respondent No. 2 had referred to his earlier

letter dated 30th December, 2008 raising objections and stating that

clearance should not be granted by the Ministry of Environment and

Forest. The respondent No. 2 had also stated that Orissa State Pollution

Control Board had forwarded his communication to the Ministry of

Environment as late as on 13th January, 2009. Therefore, the respondent W.P. (C) No. 11176/2009 Page 4 No. 2 could not believe or known that clearance had been granted on 29 th

December, 2008.

5. In the rejoinder affidavit, the respondent No. 2 had pointed out that

even Gram Panchayat and office of the Collector were not aware of the

said clearance/permission dated 29th December, 2008 till as late as March-

April, 2009.

6. The Supreme Court has repeatedly held that the law of limitation

should not be used to strangulate a citizen approaching a court/forum and

has to be liberally construed. Reference in this regard can be made to the

decisions of the Supreme Court in the case of Collector Land

Acquisition versus Katiji, (1987) 2 SCC 107 and State of Nagaland

versus Lipok, AO, (2005) 3 SCC 752 wherein the term sufficient cause

has been interpreted and it has been observed that the said term should

be given a liberal construction so as to advance substantial justice. It is

clear from the letters written by the respondent No. 2 that he had

reservations about environmental impact of the project and had started

corresponding with the authorities in December, 2008 itself.

7. One of the allegations made in the writ petition is that the impugned

order makes observations with regard to the adverse environment impact

in form of air pollution of the local area and the proposed international

airport in the vicinity. The said statement made in the grounds of appeal

is not correct. What is stated in the impugned order is that the Appellate

W.P. (C) No. 11176/2009 Page 5 Authority had agreed to condone the delay taking into account "the

possible" adverse environmental impact as alleged by the respondent No.

2. The Appellate Authority has not given any finding on merits of the

allegation made by the respondent No. 2 on the question of impact on the

environment. What is stated is that the allegations require consideration.

There is no finding.

8. In view of the above, I do not find any merit in the present writ

petition and the same is dismissed.

SANJIV KHANNA, J.

      AUGUST 26, 2009
      VKR




W.P. (C) No. 11176/2009                                             Page 6