Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
..............
M.A.No.617/2013, 734/2013 & 735/2013
(Arising out of Appeal No.81 of 2013)
In the matter of
M/s Krishna Stone Crushers
Village Devdhar, Tehsil Chachrouli,
District Yamuna Nagar (Haryana)
.........Appellants
AND
M.A.No.623/2013, 730/2013 & 731/2013
(Arising out of Appeal No.82 of 2013)
In the matter of
M/s Jagat Stone Crusher,
Village Ballewala,
District Yamuna Nagar (Haryana)
.........Appellants
AND
M.A.No.619/2013, 726/2013 & 727/2013
(Arising out of Appeal No.83 of 2013)
In the matter of
M/s Mehal Stone Crushers,
Village Ballewala
District Yamuna Nagar (Haryana)
.........Appellants
AND
M.A.No.618/2013, 720/2013 & 721/2013
(Arising out of Appeal No.84 of 2013)
In the matter of
M/s Gayatri Stone Crushers,
Village Ballewala, Tehsil Chachrouli,
District Yamuna Nagar (Haryana)
1
.........Appellants
AND
M.A.No.622/2013, 732/2013 & 733/2013
(Arising out of Appeal No.85 of 2013)
In the matter of
M/s Kaveri Stone Crushers,
Village Devdhar,
District Yamuna Nagar (Haryana)
.........Appellants
AND
M.A.No.624/2013, 728/2013 & 729/2013
(Arising out of Appeal No.86 of 2013)
In the matter of
M/s Dhillon Stone Crushers,
Village Mandewala,
Yamuna Nagar (Haryana)
.........Appellants
AND
M.A.No.621/2013, 724/2013 & 725/2013
(Arising out of Appeal No.87 of 2013)
In the matter of
M/s Panchkula Stone Crushers,
Village Doiwala, Tehsil Chachrouli,
District Yamuna Nagar (Haryana)
.........Appellants
AND
M.A.No.620/2013, 722/2013 & 723/2013
(Arising out of Appeal No.88 of 2013)
In the matter of
M/s Super Stone Crushers,
Village Doiwala, Tehsil Chachrouli,
District Yamuna Nagar (Haryana)
.........Appellants
AND
2
M.A. No.878 of 2013
(Arising out of Appeal No.95 of 2013
In the matter of :
1. M/s. Jai Mata Di Stone Crushers
Village Doiwala,
Yamuna Nagar (Haryana) .........Appellants
Versus
1. Haryana State Pollution Control Board
C-11, Sector 6, Panchkula-124505
2. The Regional Officer,
Haryana State Pollution Control Board,
SCO No.131, Sector 17, Jagadri,
Yamuna Nagar-135001
.......Respondents
Counsel for Appellants :
Mr. Dhruv Tamta and Mr. Harihara, Advocates
Counsel for Respondents :
Mr. Narender Hooda, Sr. Advocate and
Mr. Devinder Pratap Singh, Mr. Vineet Malik and Ms. Chaitali
Dhingra, Advocates for Respondents No.1 & 2
JUDGMENT
PRESENT :
Hon'ble Mr. Justice Swatanter Kumar (Chairperson) Hon'ble Mr. Justice U.D. Salvi (Judicial Member) Hon'ble Dr. D.K. Agrawal (Expert Member) Hon'ble Mr. B.S. Sajwan (Expert Member) Hon'ble Dr. R.C.Trivedi (Expert Member) Dated : 9th January, 2014 JUSTICE SWATANTER KUMAR, (CHAIRPERSON):
1. By this common judgment, we shall dispose of the above nine appeals as they arise out of similar facts and raise common legal issues. All the appellants are carrying on the business of stone 3 crushing under different names and styles in the State of Haryana. All of them challenge the legality and correctness of the order passed by the Haryana State Pollution Control Board (for short 'HSPCB') dated 15th March, 2012 which was upheld by the appellate authority vide its order dated 24th January, 2013. Besides referring to the specific facts in the cases, we would take up the Appeal No. 95 of 2013, (M/s. Jai Mata Di Stone Crushers vs. Haryana SPCB and Anr.) as the lead case for reference of the facts. M/s. Jai Mata Di Stone Crushers is a sole proprietorship concern, earlier working under the name and style of M/s Tej Singh Stone Crushers. The said appellant carries on the business of stone crushing, located in district Yamuna Nagar of the State of Haryana and falls under the jurisdiction of HSPCB. When it started its business in the year 1996, the appellant had obtained a No Objection Certificate (for short the 'NOC') from HSPCB on 9th September 1996. The NOC by HSPCB was issued based on the report dated 20th August 1996 of the Revenue authorities specifying that the appellant-unit is within the siting parameters for stone crushing units. After incurring heavy expenditure, it installed expensive equipment and got installed anti-pollution control measures to satisfy the terms and conditions of the consent granted under the Air (Prevention and Control of Pollution) Act, 1981 (for short the 'Act of 1981'). The appellant unit was granted consent from year to year by the HSPCB. The State Government of Haryana issued a notification dated 18th December, 1997 containing certain guidelines for installation and operation of stone crushers. With reference to the 4 said guidelines, a survey/inspection of the various units was conducted by the Regional officers of the HSPCB and reports were prepared. As per the report, Villages Ballewala, Doiwala and Koliwala were submerged in floods in 1978. According to the appellant, thus, the guidelines were inconsequential. In response to the query made by the HSPCB, vide its letter dated 25th August, 2003, the revenue authorities vide their letter dated 12th September, 2003 informed that the three villages had submerged and no abadi was left. Consequently, for giving consent, the measurements were being considered from Lal Dora of Village Devgarh in that area.
2. Another notification dated 30th October, 1998 was issued by the State Government where, inter alia, it intended to give benefit of Schedule II entry (n) to the stone crushers installed and in operation for a continuous period of one year before the coming into force of the notification of 1997. According to this appellant, they never violated either of the notifications afore-stated, rather they were entitled to the benefits of the notifications. No objection with regard to the distance was ever raised and the appellant has been granted consent till the year 2011. The appellant-unit vide its application dated 8th April, 2011 applied for obtaining of consent to operate for a further period of two years (2011-12 and 2012-13). It is pleaded by this appellant that in the year 2007, some villagers filed frivolous suits against the stone crushers, including that of the appellant. An application under order VII Rule 11 of the Code of Civil Procedure, 1908 was filed by the appellant and the other interested parties, which culminated into a withdrawal before the 5 High Court. The appellant alleges that the application for obtaining consent, of the Board was then pending before the Board. On 2nd February, 2012, a show cause notice was issued by the HSPCB to the stone crusher-unit including that of the appellant stating that the units were running in violation to the provisions of the notification dated 18th December, 1997 and the consent had been granted to the appellant under a misconception of the facts, projected by the revenue authorities. The said show cause notice dated 2nd February, 2012 reads as under:
"HARYANA STATE POLLUTION CONTROL BOARD S.C.O. NO. 131, Sector - 17, Jagadhri (Yamuna Nagar) No. HSPCB/YMN/2011/4234 Dated: 02/02/2012 To M/s. Jai Mata Di Stone Crusher, Vill Doiwala, Chhachhrouli, Yamuna Nagar Subject:- Show Cause Notice for closure under section 31-A of the Air (Prevention and control of Pollution) Act, 1981 Whereas, your stone crushing unit is installed and running in utter violation of the mandatory provisions of Haryana Government Notification of dated 18-12-97.
Whereas consent to establish (NOC) to your unit was granted by the Board under misconception of facts as narrated by the Revenue authorities in their reports revealing non existence of certain villages which are, in fact, existing as per recent reports of revenue authorities/Forest Deptt.
Whereas the siting parameters in respect of stone crushers, as per Notification were adjudged by the Board in light of the earlier, reports of the revenue authorities which in fact were not correct and consequently the NOC were issued under misrepresentation of true facts.
Whereas, as per latest inspection / survey carried out by Revenue Department, Yamuna Nagar, your Stone Crusher is falling short of required distance as per notification dated 18.12.1997.6
Whereas, as per latest inspection / survey carried out by Forest Department, Yamuna Nagar, your Stone Crusher is falling short of required distance as per notification dated 18.12.1997.
Whereas, you have failed to submit analysis report under Air Act for the year 2011-12 and also operating your unit without obtaining consent under Air Act for the year 2011-12.
Since your unit is not meeting out the siting parameters and is thus installed and being run in violation of the Notification, hence by this captioned notice you are hereby called upon to show cause as to why the NOC granted under misconception and misrepresentation of true and material facts to you, may not be revoked and why your unit be closed down as per provisions of Air Act, 1981. In view of the above, you are hereby given SCN for Closure for 15 days as to why your unit should not be closed and disconnect electric connection including other captive power under section 31-A of the Air Act, 1981 for non compliance of the provision of the said Act. In case you fail to comply with the deficiencies mentioned above within stipulated period, it will be presumed that you have nothing to say in this regard and accept the status as mentioned above, which will warrant your unit under section 31 - A of Air Act.
"31-A". Not withstanding anything contained in any other, but subject to the provisions of this Act and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of it any person, office or authority and such person, officer or authority/shall be bound to comply with such directions.
Explanations: For the avoidance of doubts, it is hereby declared that the power to issue direction under this section includes the power to direct: -
(a) The closure, prohibition or regulation of any industry, operation or process.
or 7
(b) The stoppage or regulation or supply of electricity, water or any other services.
Regional officer Yamuna Nagar Endst No. HSPCB/YMN/2011/ A copy of the above is forwarded to the Chairman, Haryana State Pollution Control Board, Panchkula for kind information and further necessary action.
Regional officer Yamuna Nagar"
3. To this show cause notice, the appellant submitted a reply dated 15th February, 2012, in which it was claimed that no violation of the notification was committed by the appellants. According to the appellants, without considering the said reply, the HSPCB issued another show cause notice dated 23rd February, 2012 which reads as under: -
"HARYANA STATE POLLUTION CONTROL BOARD S.C.O. NO. 131, Sector - 17, Jagadhri (Yamuna Nagar) No. HSPCB/YMN/2011/5158 Dated: 23/02/2012 To M/s. Jai Mata Di Stone Crusher, Vill Doiwala, Chhachhrouli, Yamuna Nagar Subject:- Show Cause Notice for refusal of Consent under section 21/22 of Air Act, 1981 for the year 2011-
12. Kindly refer to your Consent application under Air Act, 1981 for the year 2011-12 and this office letter no. HSPCB/YMN/2011/4234 Dated 02.02.2012 on the subject mentioned above.
In this connection, it is obvious that your application was found incomplete and not conforming to the requirements of the above Act under which you sought the Consent for the year 2011-12 in the following respect:-8
1. Not submitted operation schedule of the stone crusher.
2. Not submitted Analysis Report under Air Act, 1981.
3. Not meeting the sitting parameters as per 18.12.1997 notification.
Your consent application under Air Act, 1981 for the year 2011-12 has been found incomplete in respect of issue as detailed above. You may like to comply with all these requirements and furnish fresh requisite documents to prove compliance of shortcoming mentioned above.
Your reply must reach in this office within 15 days, failing which it will be finally presumed by the Board that you have nothing to say in this matter and this communication may then be treated as the legal refusal of your consent under Air Act, 1981 for the year 2011-12.
Regional officer Yamuna Nagar Endst No. HSPCB/YMN/2011/ A copy of the above is forwarded to the Chairman, Haryana State Pollution Control Board, Panchkula for kind information and further necessary action.
Regional officer Yamuna Nagar"
4. A reply to this show cause notice was submitted by the appellant on 13th March, 2012 wherein besides stating the aforenoticed facts, it also claimed to have paid the fee for sample analysis.
5. According to the appellant, the HSPCB, without proper application of mind and not considering the replies submitted by them, passed the order dated 15th March, 2012 refusing to grant consent to the appellant. The said order reads as under: -
"HARYANA STATE POLLUTION CONTROL BOARD S.C.O. NO. 131, Sector - 17, JAGADHRI YAMUNA NAGAR, 91-1732-200137 Dated: 15/03/2012 9 Registration No. HSPCB/YMN/2011/5728 To M/s. Jai Mata Di Stone Crusher, Doiwala Yamuna Nagar Subject:- Refusal of consent for the year 2011-12 under Section 21/22 of Air (Prevention And Control of Pollution) Act, 1981 Please referred to your consent application submitted by you for the year 2011-12 under Section 21 and 22 of the Air Act 1981 received in this office.
Your consent application was examined by this office and it has been observed that you are not complying the various provisions is the Air Act 1981 and not complying the sitting parameters of the Notification dated 18.12.1997 accordingly show cause notices containing the observations/deficiencies were issued to your Unit vide this office letter o. 2555 dated 08.09.2011, 4234 dated 02.02.12 and 5180 dated 22.02.12. The replies submitted by you in this reference to show cause notices referred above is not satisfactory. Consent case of your Unit was put up before BLC (upper) meeting held on 27.02.2012 as per the decision of refuse your consent under Air Act 1981 for the year 2011-12 as you have failed to comply the following observations:
1. Not submitted operation schedule of the stone crusher.
2. Unit has not submitted analysis report under Air Act, 1981.
3. Not meeting the Sitting Parameters as per notification dated 18.12.1997.
In view of above referred fact consent application submitted by you under Air Act 1981 is hereby refused for the year 2011-12 rendering yourself liable for legal action under Section 37/38/39 of the Air (Prevention And Control of Pollution) Act, 1981 and all other rules/laws/orders by the Govt/Board from time to time as applicable in the matter.
Sd/-
Divisional Officer, Yamuna Nagar"
6. The order of the HSPCB was challenged by the appellant by 10 filing an appeal before the appellate authority constituted under the Water (Prevention and Control of Pollution) Act, 1974 and the Act of 1981. The appellate authority, after hearing the parties and by a detailed order dismissed the appeals vide its order dated 24th January, 2013. The relevant part of the said order reads as under:-
9. "The Census Department of Government of India, on the basis of Census carried out after every ten years publishes villagewise directory of the District which contains the list of all the villages as per Revenue record and updates the data in respect of population and other related parameters. The respondent Board has placed on record report which is annexed with copy of Memo No. 1637 dated 08.12.2011 from the District Statistical Officer, Yamuna Nagar, addressed to the Regional Officer, Yamuna Nagar with population Census for the years 1991 and 2001 in respect of villages Diowala (69) Bhood Majra (70) Kohliwala (68) and Ballamajra (71) with their population. The population of these villages as per 2011 Census was 261, 541, 329 and 839. This population growth is significant over 1991 Census data. It is yet to be published for the Census conducted for 2011, as informed by the District Statistical Officer, Yamuna Nagar. Thus it is authenticated that these villages existed in the year 1991 and it supported the view that even if these were washed away, these had since been rehabilitated earlier to 1991. So the existence of these villages cannot be questioned and the distance has to be measured from nearest village Abadi as per the requirements 11 of Notification dated 18.12.1997. There is another document titled "Report as on 2002 and Report as on today," prepared by Patwaris of concerned villages, Kanungo and the Tehsildar of Chhachhrauli as on 08.12.2011 in respect of five villages namely (i) Diowala (ii) Ballawala (iii) Kohliwala (iv) Bhood Majra and (v) Bhood Kalan, showing No. of houses in each village and authenticating the existence of these villages in the year 2002. The report of the Distt. Forest Officer, Yamuna Nagar records distance of the Units from the nearest Forest Land as per Govt. record. The report does not mention the year of recorded Forest. As the report does not record year so it does not help us in reaching at any conclusion about the applicability of the said parameter as far as the distance from recorded Forest is concerned on the given date. So we do not have any other view but to agree to the distance clearance of Forest at the time of issue of NOC to the Unit. The respondent Board has also placed on record report which is jointly signed by Revenue Deptt. and the PWD Officers consisting of SDO PWD B&R and the Tehsildar and 3 other Officials. The distance of the Unit of the appellants is much less than required 1000 m. So, according to this report the Unit does not meet the parameters of distance from the nearest village Abadi which should be minimum 1000 mtrs as per Notification. On the basis of overwhelming facts furnished by SDO (c) Bilaspur, in his report addressed to the Deputy Commissioner, Yamuna Nagar with a copy to the Regional 12 Officer respondent No. 2, this Authority is inclined to accept and agree to the truthfulness of the report about siting distance from village abadi.
10. The Refusal Consent for the year 2011-12 vide letter dated 15.03.2012 (Annex A-1) has listed following three issues with regard to which the Unit has failed to comply :-
i) Not submitting operation Schedule of the Stone Crusher.
ii) Unit has not submitted analysis report under Air Act, 1981.
iii) Not meeting the siting parameters as per Notification dated 18.12.1997.
The appellants have contended that they had been granted NOC in the year 1996 on the basis of distance parameters based on reports of the Revenue Authorities and those of the Forest Department about the distance from village Abadi and the recorded Forest, respectively and the respondent now cannot deny Consent after such a long period spanning over 15 years. We do not buy this argument as the NOC and Consent granted on misconceived information cannot be perpetuated as a matter of right. On the basis of documents / reports and oral submissions during the arguments by the respondent counsel we unhesitatingly accept the contention that the Unit is failing in respect of distance parameter from the nearest village abadi as per report dated 08.02.2011 of SDO (c) Bilaspur, Distt. Yamuna Nagar. The Refusal of 13 Consent vide letter No. HSPCB/YMN/2011/5658 dated 15.03.2012 (Annexure A/1) is upheld. The appeal fails and we order accordingly with no order as to costs."
7. Except in Appeal No. 95 of 2013, all other appellants filed review applications before the appellate authority praying for variation/review of the order dated 24th January, 2013 vide which 8 appeals were disposed of. In the review application, all possible grounds were taken including that the judgment suffered from errors apparent on the face of the record and also that the plea of granting of benefit of Clause (n) of Schedule II to the Notification dated 30th October, 1998 had not been considered appropriately by the appellate authority. This review application came to be dismissed by order of the appellate authority dated 5th April, 2013. In Appeal No. 95 of 2013 there is a challenge only to the order dated 24th January, 2013 and the appeal is barred by delay of 210 days as per the averments of the applicant-appellant himself, for which a separate application for condonation of delay bearing M.A. No. 878/2013 had been filed by the appellant.
8. In all other appeals, though there is no challenge to the order dated 5th April, 2013, but in the application for condonation of delay by the appellants, they have referred to the filing of the Review Application before the appellate tribunal and its dismissal vide order dated 5th April, 2013. They have prayed for condonation of delay which according to them is 49 days. 14
9. From the above narration of facts, it is clear that according the HSPCB, the appellants, stone-crusher owners, had committed three violations, namely:
(a) Non-submission of operation schedule of stone crushers;
(b) Non-submission of analysis report under the Act of 1981; and
(c) Not meeting the sitting parameters as per the notification dated 18th December, 1997. In the other show cause notice, it was stated that the stone-crushers were violating the provisions of the notification of 1997 and the HSPCB had granted consent under misconception of the facts as narrated by the authorities, as the above three villages had been rehabilitated. The stone crushers were running within the prohibited distance. The HSPCB had after conducting inspection and survey had passed the order dated 15 th March, 2012 declining grant of consent. These findings of facts were duly approved and concurred by the appellate authority in its order dated 24th January, 2013. The appellate authority, as is evident from the above, referred to the relevant part of the order dated 15th March, 2013 of the HSPCB, wherein paragraph 9, it had examined the rehabilitation of the villages with reference to the population thereof. They also relied upon the report as on 2002 and report as on today prepared by the patwaris of the concerned villages showing the number of houses in each village and authenticating the existence of these villages in the year 2002. These are findings of facts which were concurrently being recorded by the Board and the appellate authority and are duly supported by 15 relevant and admissible records. They have not taken into consideration any irrelevant evidence or material. Thus, there would be no justification before the Tribunal to interfere with these concurrent findings of facts. Human health is of utmost importance and must prevail over a private business interest. These stone crushers give rise to substantial quantity of fine fugitive dust emissions and high level of noise which create health hazards to the workers as well as the surrounding population by way of causing respiratory diseases and hearing impairment. The dust also adversely affects visibility, reduces growth of vegetation and hampers aesthetics of the area. A large body of literature based on field research indicates that air pollution caused by the stone crushing industry has adverse implications, both at the occupational level and community level. Air borne particles of free Silica (SiO2) of sizes smaller than 10 microns are capable of reaching respiratory system and cause silicosis, which in turn can result in normal lung tissues being replaced by non-functioning fibrous tissues (called fibrosis). There are also studies by National Institute of Occupational Health (NIOH) Ahmedabad which point to the high incidence of silicosis and tuberculosis among stone cutters. Presence of stone crushers in the vicinity of villages can therefore be a serious environmental and health hazard. Assuming that these stone crushers were adhering to the parameters, which as per the report of the HSPCB they are not, even then it is an undisputed proposition that their cumulative effect would be 16 injurious to the health of the villagers who are living within 400 or 800 meters of the location of these crushers.
10. Reference in this regard could be made to a recent judgment of the Tribunal in the case of DRG Grade Udyog v. State of Madhya Pradesh and Ors. All (I) NGT Reporter (Delhi) 205 where while discussing the impact of stone crushers on the schools within the close vicinity of the stone crushers, the Tribunal held as under:-
"23. At this stage, we notice some of the adverse impacts of such activity, which have been scientifically analysed, in relation to air and noise pollution with specific reference to children. Children are prone to higher effects of air pollution than adults as they consume much larger quantity of air per unit body weight that exposes them to higher degree of air pollution. Max Kilber, as early as in 1932, invented the theory of "Inverse Size Matter Metabolic Rate Law". This theory supports what we have stated above. Thus, adverse environmental impacts of running of stone crushing units in the vicinity of a school cannot be ignored or ousted on the plea of it not being covered under as residential area.
24. Similarly, the noise generated by the stone crushers will adversely affect the concentration level of children. Such activity is likely to hamper their ultimate performance. Noise has a 'masking' effect. Although a subdued noise is understandable in a quiet room, it is difficult to understand even a raised voice in noisy environment, like working of a stone crusher. This drowning or 'masking' occurs as a result of excitation of auditory nerve cells. In other words, it affects the understanding, concentration and capacity of the children to attentively listen to the lectures of their teachers. Persistent noise has long-term as well as short-term effects on health of children."
11. The notification of 18th December, 1997 has spelt out the protective measures and anti-pollution devices that a stone crusher is required to take and instal. The stone crusher which had started 17 its operations subsequent to the coming into force of the said notification had to be located at a distance of more than one km. from the nearest village abadi. Vide the notification dated 30th October, 1998, for the existing units, this distance was reduced to 400 metres of the village abadi/Lal Dora. This benefit was available to the stone crushers which were in operation one year prior to the issuance of the notification of 1997. The limits of distance prescribed under these notifications were mandatory and not preferential. The notifications impose restriction on the power of the competent authority to permit installation and operation of stone crushers at a distance less than the prescribed distance. In the present case, the stone crushers of the appellant cannot claim the benefit of clause (n) of Schedule II of the notification of 1998 on the ground that the villages had been wiped out in the floods. This is for the reason that the concurrent finding had been returned in this regard by the Board and the appellate authority against the appellant. It has been held with reference to the concurrent reports of the Tehsildar and the Forest Department, as referred to supra, that a large number of houses were found existing at the sites even in the year 1991. The notifications have to be interpreted in a manner that it would advance the cause of environmental protection rather than frustrate the same. The obvious result of accepting the contention of the appellant would cause environmental damage. It is clear from the records before the Tribunal that the units of the appellant are violating the condition 18 of distance imposed under the notification of 1997, as amended by the notification of 1998.
12. In view of the facts of this case and the law aforestated, we do not see any reason to interfere with the order dated 24 th January, 2013 under appeal in these cases.
Limitation:
13. Though we have dealt with and decided this case on merits, as above, still there is another hurdle which the appellants are required to cross as to all these appeals being barred by time. It is even contended that this Tribunal has no jurisdiction to condone the delay in terms of Section 16 of the National Green Tribunal Act, 2010 (NGT Act). Section 16 of the NGT Act reads as under:-
"16. Tribunal to have appellate jurisdiction. - Any person aggrieved by,-
********* h. 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;
********* 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:
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."19
14. The provisions of this Section came to be interpreted by a Bench of this Tribunal which has stated the law beyond ambiguity that once there is a delay beyond 90 days, then the Tribunal will have no jurisdiction to condone the same unless and until the communication of the order impugned in the appeal is shown not to have been received so late that it falls beyond the period of 90 days. This Tribunal had the occasion to deal with this aspect and interpretation of the provisions of Section 16 of the Act. Upon discussing the case law at some length and examining the legislative intent underlying this provision, the Tribunal in the case of Nikunj Developers & Others v. the State of Maharashtra & Others [2013 ALL(I) NGT(1) PB 40] held as under:-
"19. From language of the above provision it is clear that the Tribunal loses jurisdiction to condone the delay if the delay is of more than 90 days. Every appeal has to be filed within 30 days from the date of communication of the order. That is, what an applicant is required to ensure before the appeal is heard on merits. However, the Tribunal has been vested with the jurisdiction to entertain the appeal which is filed after 30 days from the date of communication of an order. This power to condone the delay has a clear inbuilt limitation as it ceases to exist if the appeal is filed in excess of 60 days, beyond the prescribed period of limitation of 30 days from the date of communication of such order. To put it simply, once the period of 90 days lapses from the date of communication of the order, the Tribunal has no jurisdiction to condone the delay. The language of the provision is clear and explicit. It admits of no ambiguity and the legislative intent that Tribunal should not and cannot condone the delay in excess of 90 days in all, is clear from the plain language of the provision.
20. As stated in the cases Hiralal Ratan Lal and India Houses (supra) the period of limitation statutorily prescribed, has to be strictly adhered to and cannot be relaxed and or departed from, on equitable consideration. Further, in construing a 20 statutory provision, the first and the foremost rule of construction is that of literary construction. We do not see any reason to expand the scope of the provision and interpret the proviso to Section 16 in the manner that Tribunal can be vested with the power of condoning the delay beyond 90 days. Such interpretation would be contrary to the specific language of the Section and would defeat the very legislative intent and object behind this provision.
21. This controversy need not detain us any further as it is no more res integra and stands answered by the judgment of the Supreme Court in the case of Chhattisgarh State Electricity Board Vs. Central Electricity Regulatory Commission and others (2010) 5 SCC 23 where the court held as under:
"29. Section 34(3) of the Arbitration and Conciliation Act, 1996, which is substantially similar to Section 125 of the Electricity Act came to be interpreted in Union of India v. Popular Construction Company : (2001) 8 SCC 470. The precise question considered in that case was whether the provisions of Section 5 of the Limitation Act are applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996. The two-Judge Bench referred to earlier decisions in Mangu Ram v. Municipal Corporation of Delhi: (1976) 1 SCC 392, Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099, Hukumdev Narain Yadav v. L.N.
Mishra (supra), Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai : (1992) 4 SCC 264 and held:
12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to Sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not 21 thereafter" wholly otiose. No principle of interpretation would justify such a result.
16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" Sub-
section (2) and Sub-section (3). Sub-
section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application "in accordance with"
that Sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed.
The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired ...
the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court".
This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow" (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act. (emphasis supplied) 22
30. In Singh Enterprises v. C.C.E., Jamshedpur and Ors. (supra), the Court interpreted Section 35 of Central Excise Act, 1944, which is pari materia to Section 125 of the Electricity Act and observed:
8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to Sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.
(emphasis supplied)"
23
22. The same view was reiterated in Commissioner of Customs, Central Excise v. Punjab Fibres Ltd. : (2008) 3 SCC 73.
"31. In Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. (2009) 5 SCC 791, a three-Judge Bench considered the scheme of the Central Excise Act, 1944 and held that High Court has no power to condone delay beyond the period specified in Section 35H thereof. The argument that Section 5 of the Limitation Act can be invoked for condonation of delay was rejected by the Court and observed:
"30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.
32. As pointed out earlier, the language usedinSections 35, 35B, 35EE, 35G and 3 5H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order.
In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days 24 after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
XXXXX XXXXX XXXXX XXXXX
35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
(emphasis supplied)
32. In view of the above discussion, we hold that Section 5 of the Limitation Act 25 cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory."
23. Section 34 of the Arbitration and Conciliation Act, 1996 uses the expression 'not thereafter' while the provision under our consideration uses the terms 'not exceeding'. Both these expressions use negative language. The intention is to divest the Courts/Tribunals from power to condone the delay beyond the prescribed period of limitation. Once such negative language is used, the application of provisions of Section 5 of the Limitation Act or such analogous provisions would not be applicable.
24. The use of negative words has an inbuilt element of 'mandatory'. The intent of legislation would be to necessarily implement those provisions as stated.
25. Introduction or alteration of words which would convert the mandatory into directory may not be permissible. Affirmative words stand at a weaker footing than negative words for reading the provisions as 'mandatory'. It is possible that in some provision, the use of affirmative words may also be so limiting as to imply a negative. Once negative expression is evident upon specific or necessary implication, such provisions must be construed as mandatory. The legislative command must take precedence over equitable principle. The language of Section 16 of the NGT Act does not admit of any ambiguity, rather it is explicitly clear that the framers of law did not desire to vest the Tribunal with powers, specific or discretionary, of condoning the delay in excess of total period of 90 days. At this stage, we may also refer to Principle of Statutory 26 Interpretation by Justice G.P. Singh, 13th Edition, where it is stated as under:
"(c) Use of negative words Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. As stated by CRAWFORD:
"Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience." As observed by SUBBARAO, J.: "Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative". Section 80 and Section 87-B of the Code of Civil Procedure, 1908; section 77 of the Railways Act, 1890; Section 15 of the Bombay Rent Act, 1947; section 213 of the Succession Act, 1925; section 5-A of the Prevention of Corruption Act, 1947; section 7 of the Stamp Act, 1899; section 108 of the Companies Act, 1965; section 20(1) of the Prevention of Food Adulteration Act, 1954; section 55 of the Wild Life Protection Act, 1972 (as amended in 1956); section 10A of Medical Council Act, 1965 (as amended in 1993) and similar other provisions have therefore, been construed as mandatory. A provision requiring 'not less than three months' notice' is also for the same reason mandatory.
But the principle is not without exception. Section 256 of the Government of India, 1953, was construed by the Federal Court as directory though worded in the negative form. Directions related to solemnization of marriages though using negative words have been construed as directory in cases where the enactments in question did not provide for the consequence that the marriage in breach of those directions shall be invalid. Considerations of general inconvenience, which would have resulted in holding these enactments mandatory, appear to have outweighed the effect of the negative words in reaching the conclusion that they were in their true meaning merely director. An interesting example, 27 where negative words have been held to be directory, is furnished in the construction of section 25-F of the Industrial Dispute Act, 1947, where compliance of clause (c) has been held to be directory; although compliance of clauses (a) and (b) which are connected by the same negative words is understood as mandatory. These cases illustrate that the rule, that negative words are usually mandatory, is like any other rule subordinate to the context, and the object intended to be achieved by the particular requirement."
26. The provision of Section 16 of the NGT Act are somewhat similar to Section 34 of Arbitration and Conciliation Act, 1996. Thus, adopting an analogous reasoning, as was adopted in Chhattisgarh State Electricity Board (supra), we would have no hesitation in coming to the conclusion that we have no jurisdiction to condone the delay when the same is in excess of 90 days from the date of communication of the order to any person aggrieved."
15. Now, we may apply the above principle to the facts of the present case. As far as the Appeal No. 95/2013 is concerned, the impugned order was passed on 24th January, 2013 and the same was received by the appellant. In the application for condonation of delay, the appellant has not stated as to when the appellant received the said order. Presumably, the order was received immediately thereafter. The appeal ought to have been filed within 30 days of the communication of the order or at best within 90 days upon showing sufficient cause for the condonable delay of 60 days. Beyond this period of 90 days, the Tribunal would not be able to condone the delay even upon showing existence of sufficient cause. As per the appellant, he prays for condonation of 210 days' delay though, in the present case, the order is of 24th January, 2013 and 28 the appeal was filed on 3rd October, 2013. Even if the period of 90 days is excluded, still there would be a delay of eight months and 17 days. After excluding the permissible period of 90 days, the appeal would still be barred by more than six months, which the Tribunal has no jurisdiction to condone. Thus, the appeal is liable to be dismissed on the grounds of limitation alone which we do hereby dismiss.
16. In all other cases, the order of the HSPCB of 15th March, 2012 and that of the appellate authority is of 24th January, 2013. All the appellants had filed review application before the appellate authority which came to be dismissed vide order dated 5 th April, 2013. In the appeals, none of the appellants have challenged specifically the order of review dated 5th April, 2013.
17. It is a settled proposition of law that where a review application is dismissed and the original order, review of which is sought, is maintained, the limitation will be computed with reference to the first order, i.e. 24th January, 2013. There being no challenge to the order dated 5th April, 2013, all these appeals would also be barred by eight months and the Tribunal will have no jurisdiction to condone the delay. All these appeals have been filed much beyond the period of 90 days, the prescribed period and permissible period of limitation beyond which the Tribunal has no jurisdiction to condone the delay. As such all these appeals are also liable to be dismissed on the grounds of limitation. 29
18. In view of our detailed discussion above, we dismiss all these appeals. However, in the facts and circumstances of the case, we leave the parties to bear their own costs.
Justice Swatanter Kumar Chairperson Justice U.D. Salvi Judicial Member Dr. D.K. Agrawal Expert Member B.S. Sajwan Expert Member Dr. R.C. Trivedi Expert Member January 9, 2014 New Delhi 30