BEFORE THE NATIONAL GREEN TRIBUNAL
                           (WESTERN ZONE) BENCH, PUNE
                              APPEAL No. 5/2014(WZ)
                                      And
                                 M.A.No.37/2014

CORAM:


         Hon'ble Shri Justice V.R. Kingaonkar
         (Judicial Member)

         Hon'ble Dr. Ajay A.Deshpande
         (Expert Member)



B E T W E E N:



Appaso Satappa Tambekar,
Age 60 years, Occ: Agril.
R/o Mangnur, Tal. Kagal.
District Kolhapur (Mah. State).
                                                  ....Applicant

                                      AND



 1.      Appellate Authority
         Under the provisions of Water
         (Prevention and Control of Pollution) Act,
         1974 and Air Prevention and Control of
         Pollution) Act, 1981, Environment Department
         15th Floor, New Administrative Building,
         Mantralaya, Mumbai.

2.       Maharashtra Pollution Control Board
         Kalpataru Point, 2/3/4 floor, Opp. Cime
         Planet Near Sion Circle, Sion(e) Mumbai.

3.       Sar Senapati Santaji Ghorpade,
         Sugar Factory Ltd, Gat No.466,467
         470, A/p Belewadi Kalamma,
          Tal- Kagal, Dist Kolhapur.       .........Respondents

Counsel for Applicant:

Mr. Louis S. Shah Counsel for Respondent(s) 1 (J) Appln. No. 5 of 2014 Date: March 20th 2014 ORAL JUDGMENT P.B:

1. This Appeal is filed on 13th February, 2014. The Appellant has preferred the present Appeal against order dated October 25th, 2013, passed by Respondent No.1, under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974 and Air Prevention and Control of Pollution) Act, 1981, The impugned order was forwarded to the Appellant along with forwarding letter dated October 25th, 2013. The Appellant has come out with a case that the impugned order was received by him by post on October 30th ,2013.

2. According to the Appellant, the Appeal had to be filed up till November 30th, 2013, but there is delay in filing of the Appeal due to his medical problem. He was suffering from mental depression between November 25th , 2013 till January 30th, 2014 and as such, was directed by medical practitioner to undergo rest. He could not, therefore, approach the Advocate and prepare Appeal Memo. Consequently, filing of Appeal is delayed by twelve (12) days. It is stated in the Application for delay condonation that delay is caused on account of 'sufficient cause' shown by the Applicant and as such, same should be condoned. 2 (J) Appln. No. 5 of 2014

3. By order dated March 3rd, 2014, we directed the Appellant/Applicant to place on record postal envelope which he was then ready to produce for perusal of this Tribunal, in order to show the postal stamp regarding receipt of envelope by him. However, he has not produced the postal envelope for perusal of the Tribunal.

4. We have heard learned Advocate Shah for the Appellant/Applicant. He argued that delay is unintentional and can be condoned when sufficient cause is shown. He invited our attention to the provision of Order 8, Rule 1 of the C.P.Code. He further invited our attention to the Judgments of learned Single Judges of the Hon'ble High Court of Bombay, in :

(1) "Kaluba Madhavrao Upasevs Vs. Sau. Rangubai w/o Rajabhau Atole & Ors" 2007(4) ALL MR 252, (2) "Sudhirkumar Krishnalal Sahani vs. Nagar Parishad/Nagar Palika/Municipal Council, Hinganghat"2009(6) Mh.L.J.384, and (3) "Pusaram s/o Sakharam Chavan vs. Jyoti @ Savitgri d/o Dnyanoba Badade and others" 2012(5)Mh.L.J. 197.

5. It appears that in the context of Order 8, Rule1, of C.P. Code, the Hon'ble High Court of Bombay has taken a view that:

"Proviso of Rule (1), which requires filing of written statement within ninety (90) days, is a directory provision and as such, delay could be condoned.

What appears from the perusal of above three (3) 3 (J) Appln. No. 5 of 2014 Judgments cited by the learned Advocate for the Appellant, is that these three (3) citations are based on observations in the case of "Shaikh Salim Haji Abdul Khayumsab vs. Kumar and others," reported in 2006(1) Mh.L.J.(S.C.) 178=2006(1) Bom.C.R.57." It is observed by the Apex Court in paras 10 and 14 as below:

10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of procedural law may be liberal or stringent, but the fact remains that the object of prescribing procedural is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the Civil Procedure Code or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice.

14. Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administrative of justice"

6. We may mention here that limitation for filing of an Appeal under the National Green Tribunal Act, 2010, is specifically circumscribed by Section 16 of the enactment. Section 16 reads as follows:

16 Any person aggrieved by, ----

     (a) xxx               xxx   xxx        xxx

     (b) xxx               xxx   xxx        xxx

     (c) xxx               xxx   xxx        xxx



                                                                    4
(J) Appln. No. 5 of 2014
      (d) xxx               xxx          xxx        xxx

     (e) xxx               xxx          xxx        xxx

     (f) xxx               xxx          xxx        xxx

     (g) xxx               xxx          xxx        xxx

     (h) xxx               xxx          xxx        xxx

     (i) xxx               xxx          xxx        xxx

(j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National Biodiversity Authority or a State Biodiversity Board under the provisions of the biological Diversity Act, 2002, 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 tiled under this section within a further period not exceeding sixty days.

(Emphasis supplied by us)

7. The above provision is not rule of procedure akin to those under the C.P.Code. There is basic difference between substantive provision in the section of the Act, which specifies particular limitation and excludes provisions of the Limitation Act, 1963 and directory Rules under the Code of Civil Procedure. In "Seva Mon Region Federation & Anr vs Union of India and Ors" (MA No.104/2012, arising out of Appeal No.13/2012) the Hon'ble Principal Bench of NGT, New Delhi, by order dated March 14, 2013, elaborately discussed the scope of Section 16. The Hon'ble Principal Bench, held that "such period cannot be extended by the Tribunal." Similar view is expressed by this Bench in the Order passed in Appeal No.2/2013. "Gram panchayat Tiroda & Anr vs MoEF & ors". This Bench 5 (J) Appln. No. 5 of 2014 held that the Tribunal has no power to extend limitation period beyond the period prescribed under the specific provision enumerated in the enactment. We may refer to observations of this Tribunal as enumerated in paragraph 25 of the said order. The same may be re-produced as follows:

25 At this juncture, we may refer to case of "Chhatisgarh State Electricity Board Vrs. Central Electricity Regulatory Authority and Ors (2010)5, S.C.C. 23". In the said case the Apex Court considered Section 125 of the Electricity Act 2003 along with Proviso appended thereto. The Apex Court held that the limitation period provided under section 125 is of 60 days and could be extended upto 60 days under Proviso to Section 125 but there is no provision in the said Act for extension beyond this period. It is held that the Electricity Act is a special legislation which is excluded from purview of the Limitation Act, 1963 by virtue of Section 29(2) of the Limitation Act and therefore, Section 5 of the Limitation Act, cannot be invoked. It is quite clear, therefore, that Section 5 of the Limitation Act is not applicable to the Appeal which comes within ambit of Section 16 of the NGT Act, 2010.

(J) Appln. No. 5 of 2014

8. Considering the view taken consistently by the Hon'ble Principal Bench and this Bench, we have no hesitation to hold that the present Appeal is barred by limitation and delay cannot be condoned. The case law relied upon by the learned Advocate for the Appellant, is not applicable to the facts of the present case and in view of the legal position enumerated above.

9. In view of foregoing discussion, the Application will have to be dismissed, so also, the Appeal will have to be dismissed. Hence, we have no option but to dismiss the Miscellaneous Application and the Appeal. Both are accordingly dismissed. No costs.

.............................................,JM (Justice V. R. Kingaonkar) ..........................................., EM (Dr. Ajay.A. Deshpande) 7 (J) Appln. No. 5 of 2014