Disposed

1. Chittaranjan Mahanta S/0- Mahendra Mahanta Aged About 42YEARS v. 1. Union of India through the Secretary Ministry of Environment Forests and Climate Change

NGT13 Nov 2024IA No. 94/2024 in Appeal No. 9/2024

Case brief

AI extract

What is this about?

The Tribunal disposed of a interlocutory application seeking modification of an order admitting an appeal filed after correcting procedural defects. Citing Supreme Court precedent, the court held that initial filing within the limitation period and subsequent rectification does not constitute a fresh filing barred by time. The main appeal challenging the Environmental Clearance was listed for argu

What did the court decide?

I.A. No.Nil of 2024 dismissed; Appeal No.09/2024/EZ listed on 18.12.2024.

1. Chittaranjan Mahanta S/0- Mahendra Mahanta Aged… — Civil Procedure and Limitation | NGT (2024)

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Item No.02

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Court No.1

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BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA

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(THROUGH PHYSICAL HEARING WITH HYBRID MODE)

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Appeal No.09/2024/EZ (I.A. No.Nil of 2024)

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Chittaranjan Mahanta & Ors. Appellant(s)

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Versus

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State of Odisha & Ors.

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Respondent(s)

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Date of hearing: 13.11.2024

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CORAM: HON’BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON’BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER

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For Appellant(s) : Mr. Sankar Prasad Pani, Advocate a/w Mr. Ashutosh Padhy, Advocate

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ORDER

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I.A. No.Nil of 2024

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This Interlocutory Application has not been registered by the office of the Tribunal stating that due to technical glitch in the e-filing portal, the same could not be numbered, though at least two attempts have been made by the learned Counsel for the Appellant to file the same, as pointed out by him and fees has also been deposited. However, we are taking up the I.A. No.Nil of 2024 for consideration and when the internet glitches are rectified, the office of the Tribunal shall give a proper number to the Interlocutory Application.

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I.A. No. Nil of 2024 has been filed by the Appellant in Appeal No.09/2024/EZ seeking modification of the order of this Tribunal dated 06.09.2024. By the order of 06.09.2024, this Tribunal had granted time to the Appellant to file delay condonation application to condone the delay, if any, in filing the Appeal.

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Therefore, we are satisfied that the order dated 06.09.2024 does not require modification. However, the question is whether there is any delay in filing the Appeal and the same requires to be considered. Explanation has been given in the Interlocutory Application.

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In the I.A., it is stated that the Appeal was filed on 12.06.2024 i.e. within 30 days from the date of issue of the impugned Environmental Clearance dated 13.05.2024. It is categorically stated that the Registry of the Tribunal did not indicate that the Appeal was barred by time. The report of the office of the Tribunal has been obtained which confirms that the Appeal was filed on 12.06.2024 and on 15.06.2024, after first scrutiny it was found to be defective. Thereafter it was refiled on 15.07.2024 and after second scrutiny it was again found to be defective as on 20.07.2024. It was again filed on 25.08.2024 and again found to be defective on 27.08.2024 and it was again filed for the third time on 27.08.2024 and thereafter registered on 28.08.2024.

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Mr. Sankar Prasad Pani, learned Counsel for the Appellant referring to Rule 10 of the National Green Tribunal (Practices and Procedure) Rules, 2011 (hereinafter referred to as the Rules 2011) submits that if on scrutiny, any application is found to be defective, the Registrar or the authorized officer of the Registry shall notify in Form V on the Notice Board of the Tribunal fixing the time for rectifying the same. The papers shall then be returned to the party or his legal practitioner. The Registrar may, for good and sufficient reasons extend the time for rectifying the defects, provided the total period for rectification including the extended period does not exceed thirty days. Sub-Rule 5 of Rule 10 further provides that if the party

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or his legal practitioner rectifies the defects and represents the application or appeal or pleading within the time granted, the Registrar on being satisfied may order for its registration and acceptance, and numbering as specified in Rule 9.

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The report of the office of the Tribunal does not mention that there was any dissatisfaction recorded by the Registrar NGT/Kolkata/EZ with regard to the removal of defects in the Memo of Appeal.

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Section 16 of the National Green Tribunal Act, 2010 provides a limitation of 30 days for filing of appeal in the Tribunal and further provides 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 within a further period not exceeding 60 days.

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In the present case, we find that the defects have been removed and the Appeal has been filed within the further period of 60 days.

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Reference has also been made to the judgment of the Hon’ble Supreme Court in (2017) 11 SCC 234 Northern Railway versus Pioneer Publicity Corporation Pvt. Ltd. which though was a matter relating to proceedings arising under the Arbitration and Conciliation Act, 1996 but it was held that the limitation applies only to the initial filing of the objection under Section 34 of the Act and if the memorandum of appeal is filed and particular time is granted by the Deputy Registrar, it shall be considered as fresh institution; if this Rule is strictly applied in this case, it would mean that any refiling beyond 7 days would be a fresh institution. The Hon’ble Supreme Court has held as under: -

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“(2017) 111 Supreme Court Cases 234

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Northern Railway … Appellant

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Versus

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Pioneer Publicity Corporation Private Ltd. … Respondent

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xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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ORDER

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1. Leave granted. The appellant is aggrieved by the decision of the Delhi High Court dated 1-9-2015 in Northern Railway v. Pioneer Publicity Corpn. (P) Ltd. refusing to condone a period of 65 days in re-filing the objections under Section 34 of the Arbitration and Conciliation Act, 1996 (for short “the Act”). The award was delivered on 29.10.2012. Admittedly, the objections under Section 34 were filed within the time stipulated under Section 34 of the Act. However, since there were objections, time was granted on 23-1-2013 by the Deputy Registrar of the High Court to remove the objections within a period of 7 days. This was not done.

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2. Eventually, the appellant re-filed the matter on 21-3-2013. The explanation given by the appellant is that the amount of court fees to the extent of Rs.8,94,000 was to be arranged and that took some time. The appellant is the Northern Railway and while it is difficult to condone such inefficiency which seems to be a persistent reality with the organisation, such as the Northern Railway, that took time in arranging even the small things.

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3. Mr. Amarjeet Singh Chandiok, learned Senior Counsel appearing for the respondent submitted that Section 34(3) of the Act bars re-filing beyond the period stipulated therein. The said sub-section reads as follows:

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“34. (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal:

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Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”

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4. We find that said Section 34(3) has no application in re-filing the petition but only applies to the initial filing of the objections under Section 34 of the Act. It was submitted on behalf of the respondent that Rule 5(3) of the Delhi High Court Rules states that if the memorandum of appeal is filed and particular time is granted by the Deputy Registrar, it shall be considered as fresh institution. If this Rule is strictly applied in this case, it would mean that any re-filing beyond 7 days would be a fresh institution. However, it is a matter of record that 5 extensions were given beyond 7 days. Undoubtedly, at the end of the extensions, it would amount to re-filing.

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5. We are not inclined to accept this contention, particularly since the petitioner has offered an explanation for the delay for the period after the extensions.

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6. Having regard to the overall circumstances of the case, we consider it appropriate in the interest of justice to set aside the impugned order.

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7. Accordingly, the appeal is allowed and the impugned order of the High Court is set aside. We further direct that the objections of the appellant under Section 34 be taken on the file of the court and the matter be disposed of in accordance with law. The parties are directed to appear before the appropriate court on 28-11-2016 after obtaining certified copy of this order.”

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Thus it has been held that if the initial Appeal was filed within the period of limitation prescribed, subsequent refiling after removing of defects, cannot be said to be a fresh filing and the objection to the contrary taken in the Hon’ble Supreme Court has been specifically rejected by the Hon’ble Supreme Court.

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We are, therefore satisfied that the Appeal has rightly been registered and cannot be said to be time barred having been initially filed within 30 days of the passing of the impugned order.

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I.A. No.Nil of 2024 is accordingly disposed of.

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Appeal No.09/2024/EZ

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Heard Mr. Sankar Prasad Pani assisted by Mr. Ashutosh Padhy, learned Counsel appearing (in Virtual Mode) for the Appellants.

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The Appellants in the present Appeal are seeking setting aside of the Environmental Clearance dated 13.05.2024 granted in favour of the Respondent No.8, KAI International Private Limited. It is stated that the Respondent No.8 is a Greenfield Project for installation of Iron Ore Beneficiation Plant - 1.5 MTPA throughput (1.16 MTPA High Grade Ore), Iron Ore Palletization Plant - 1.2 MTPA and Producer Gas Plant – 27000 Nm³ /hr, located at village Kapanda, Tahasil – lahunipara, District – Sundargarh, Odisha. The Appellants are all stated to be the residents of Kapanda village, P.O. Badpurnapani, P.S. – Lahunipara, District – Sundargarh, Odisha. It is stated that the Kapanda Forest (Chadri Huli), spanning a total proposed area of 117.00 acres in Mouza Kapanda, Tahasil – Lahunipada, District Sundargarh is a vital ecological resource contiguous to the Kukia Reserve Forest. It is alleged that despite its classification as non-forest land, the proposed requisition of 135 acres by IDCO for industrial activities, notably the establishment of a Steel Plant and associated facilities, raises significant environmental and social concern.

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It is stated that on 09.06.2020, the local villagers had protested against this proposed alienation on the ground that the proposed land is a physical forest with mature trees and there has been no

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consultation with the Gram Sabha. It is also alleged that the proposed site’s proximity to Kukia Reserve Forest and other Reserve Forests within 10 km radius poses an ecological risk to the habitat of the forest including wild and endangered species of animals. It is also alleged that the industrialization in the area would have a detrimental impact on the livelihood of the local tribals of this forest.

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It is also alleged that the land is surrounded by forest and hillock on three sides and, therefore, the entire load of pollution will be concentrated in the adjoining forest and human habitation; height of the hillock has also not been taken into account.

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It is also stated that the Appellants had filed Original Application No.94/2021/EZ on the same issue and at that time the Environmental Clearance had not been granted and the said Original Application had been disposed of by this Tribunal with observations in paras 50 and 51 of the order dated 22.08.2023 which read as under:-

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“ 50 . In view of above, we are of the view that the facts as they stand need to be examined by the Expert Appraisal Committee before whom the question relating to grant of Environmental Clearance to the Project Proponent is still pending and the question whether the Project Proponent is in violation of the Notification dated 19.08.2010 read with subsequent notification dated 29.03.2022 issued by the MoEF&CC, considering the fact that the Project Proponent has also deposited a sum of Rs. 62,77,740/(Rupees Sixty Two Lakhs Seventy Seven Thousand Seven Hundred Forty only) towards royalty and replantation of the trees, is a matter which needs to be examined by the Expert Appraisal Committee. Question as to whether the Project Proponent, Respondent No.9, is liable for payment of Environmental Compensation for loss caused to the environment is also required to be considered by the MoEF&CC in totality of the facts and

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circumstances of the case and the judgments of the Hon’ble Supreme Court.

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51. Considering the totality of the case and the law laid down by the Hon’ble Supreme Court, we dispose of the Original Application 94/2021/EZ with a direction to the Respondent No.8, MoEF&CC, to take a decision in the matter of grant of Environmental Clearance to the Project Proponent, Respondent No.9, in accordance with law within a period of three months. The interim order granted by this Court on 08.10.2021 shall continue to remain in operation and shall be subject to any final decision taken by the Respondent No.8.”

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Matter requires consideration.

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Issue notice to the Respondent Nos.1, 2, 3, 4, 5, 6, 7, 8 and 9, returnable within four weeks.

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All the Respondents shall file their counter affidavits within four weeks.

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Mr. Sankar Prasad Pani, learned Counsel for the Appellant shall serve e-copy/soft copy of the Memo of Appeal along with all its annexures upon the Counsel for the parties within 224 hours.

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List on 18.12.2024.

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B. Amit Sthalekar, JM

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Dr. Arun Kumar Verma, EM

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November 13, 2024, Appeal No.09/2024/EZ (I.A. No.Nil of 2024) SKB

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1. Chittaranjan Mahanta S/0- Mahendra Mahanta Aged About 42YEARS v. 1. Union of India through the Secretary Ministry of Environment Forests and Climate Change

Case brief

What is this about?

What did the court decide?

1. Chittaranjan Mahanta S/0- Mahendra Mahanta Aged About 42YEARS v. 1. Union of India through the Secretary Ministry of Environment Forests and Climate Change

Case brief

What is this about?

What did the court decide?

What the court decided

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