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Narrow reading of law: SC sets aside NGT dismissal of appeal on time bar

The original appeal was filed in the NGT in 2017 against the environment clearance granted to GMR’s Bhogapuram International Airport project being set up at Visakhapatnam.

Under the NGT Act, 2010, a clearance can be challenged by an affected party within 30 days while the tribunal has the authority to condone another 60 days’ delay given “sufficient cause”.

HOLDING THAT the National Green Tribunal’s decision to dismiss an appeal against the environment clearance granted to the Bhogapuram airport project in Andhra Pradesh as time-barred was “erroneous and based on a narrow reading of the law”, the Supreme Court on Tuesday set aside the order and asked the parties to appear before the tribunal to argue the appeal on merit.

On Monday, The Indian Express reported how the NGT in 2020 dismissed every second appeal against green clearances dismissed on the technical ground that appellants did not approach the tribunal in time.

In its judgment delivered on Tuesday, the two-judge Supreme Court bench of Justices Nageshwara Rao and S Ravindra Bhat said: “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.”

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The original appeal was filed in the NGT in 2017 against the environment clearance granted to GMR’s Bhogapuram International Airport project being set up at Visakhapatnam. It raised issues of illegalities and infirmities such as concealment of facts by the developer, incorrect baseline studies; inadequate and faulty environment impact assessment, non-application of mind during appraisal by the Environment ministry’s expert body, and violation of the Greenfield Airports policy of the Ministry of Civil Aviation.

The applicant moved the apex court in October 2020 after the NGT dismissed the appeal filed on the 91st day, concluding that there was no “sufficient cause” to condone the delay.

Under the NGT Act, 2010, a clearance can be challenged by an affected party within 30 days while the tribunal has the authority to condone another 60 days’ delay given “sufficient cause”. This time limit applies from the day of communication as both regulators and developers are legally required to place every project clearance in the public domain.

While the NGT held that the appeal was filed on the 91st day even though the 90-day period expired on a Sunday (November 12, 2017), the SC ruled that there is no indication in the NGT Act that Section 10 of the General Clauses Act — which stipulates that if a limitation expires on a holiday, it will extend to the next day on which the court or office is open— could not be applied.

“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,” the court said.

It also rejected the developer’s argument 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” to contest land acquisition.

The judgment said: “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. 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.”

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