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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH

NEW DELHI …………..

APPEAL NO. 99 OF 2013

(MISCELLANEOUS APPLICATION NO. 1016 OF 2013) IN THE MATTER OF: M/s Bharat Stone Crusher, Village – Bolkheda, Tehsil-Kama, District-Bharatpur, Rajasthan Through its partner, Chattar Singh

……Appellant

Versus

Rajasthan State Pollution Control Board Through Member Secretary 4, Institutional Area, Jhalana Doongri, Jaipur-302501

…….Respondent

AND

ORIGINAL APPLICATION NO. 216 Of 2014 (MISCELLANEOUS APPLICATION NO. 1015 OF 2013)

IN THE MATTER OF: M/s Bharat Stone Crusher, Village – Bolkheda, Tehsil-Kama, District-Bharatpur, Rajasthan Through its partner, Chattar Singh

……Applicant

Versus

1. State of Rajasthan Through Secretary Department of Environment, Secretariat, Jaipur-302501

2. Rajasthan State Pollution Control Board Through Member Secretary 4, Institutional Area, Jhalana Doongri, Jaipur-302501 Gomti Nagar, Lucknow, Uttar Pradesh 226010

…….Respondents

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COUNSEL FOR APPLICANT: Mr. Sanjay R. Hegde, Sr. Adv. with Mr. A. Rohan, Singh, Mr. Arun Khatri, Advs. COUNSEL FOR RESPONDENTS: Mr. Krishna Kumar Singh with Ms. Bhawna Aggarwal, Advocates Mr. Shiv Mangal Sharma, AAG with Mr. Shrey Kapoor, Advocates for Respondent No. 1 Mr. Lokender Singh Kachhawa, Advocate for Respondent No. 2

(RSPCB)

JUDGMENT

PRESENT: Hon’ble Mr. Justice Swatanter Kumar (Chairperson) Hon’ble Mr. Justice M.S. Nambiar (Judicial Member) Hon’ble Dr. Devendra Kumar Agrawal (Expert Member)

Hon’ble Mr. Bikram Singh Sajwan (Expert Member)

Reserved on: 3rd November, 2015

Pronounced on: 10th December, 2015

1. Whether the judgment is allowed to be published on the net? 2. Whether the judgment is allowed to be published in the NGT

Reporter? JUSTICE SWATANTER KUMAR, (CHAIRPERSON)

By this judgment, we shall dispose of both the original Application

No. 216 of 2014 and Appeal No. 99 of 2013 as common question of

law and fact arises for determination of the Tribunal in these cases.

The necessary facts giving rise to the present appeal and application

on that M/s. Bharat Stone Crusher (for short, “Appellant”) is carrying

on the business of stone crushing in Village–Bolkheda, Tehsil-Kama,

District-Bharatpur, Rajasthan. The Rajasthan State Pollution Control

Board (for short, “RSPCB”) vide is order dated 13th July, 2006 granted

consent to operate which was valid till 12th April, 2008. Vide its

application dated 15th January, 2008, the Appellant requested the

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Board for granting extension of consent to operate. The stone crusher

of the appellant was not found to be compliant to the provisions of the

Air (Prevention and Control of Pollution) Act, 1981 (for short, “Air Act”)

which have come into force w.e.f. 16th June, 1981 in the State of

Rajasthan. The Board issued a Show Cause Notice on 6th January,

2009 to the Appellant of its intention to refuse the application for

consent to operate and issuance of direction of closure as well under

the provisions of Section 31A of the Air Act. In this show cause notice,

it was mentioned that the State of Rajasthan had terminated the

mining leases of Mesonry Stone Crusher in Kama and Deeg area and

thus there was no source of raw material to feed the stone crusher

except by illegal and illicit mining. It was also stated in the show cause

notice that the stone crushers were causing health hazards and

nuisance to the pilgrims of the ‘Brij Chaurasi Kos Parikarma Marg’

2. The Appellant filed a detailed reply on 20th January, 2009 where it

took various preliminary objections and demanded documents for

information. It was stated that there was no inspection conducted by

the Board and the allegations stated in the show cause notice are non-

est. It was stated that the allegations under the intended directions

noted were merely statement without having backed up by any

evidence. However, it was not disputed that the State Government had

terminated the mining lease. A reference was made to the order of the

Hon’ble High Court of Rajasthan dated 3rd July, 2008 that the mineral

excavated prior to 3rd July, 2008 be allowed to be used. The Board

found the reply submitted by the appellant unsatisfactory and vide

order dated 21st July, 2009 directed the Appellant Unit to close down

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the industry. It was also directed that electric supply shall be

disconnected and the diesel generator sets were sealed on the same

day. The order dated 21st July, 2009 reads as under:

“This is without prejudice to the right of the Rajasthan State Pollution Control Board (hereinafter called as ‘the Board’) to initiate proceeding under the provisions of the Air (Prevention and Control of Pollution) Act 1981(hereinafter called as ‘the Air Act’) for violation of various provisions of the Act hereinafter shown:-

1. Whereas the Air Act came into force in the whole of the State of Rajasthan with effect from 16.06.1981.

2. And whereas the Air Act has been enacted to provide for the prevention, control and abatement of air pollution.

3. And whereas, keeping this is view, the Rajasthan State Pollution Control Board (hereinafter called as ‘the Board’) has been conferred power to take such steps as are deemed necessary for the prevention and control and abatement of Air pollution.

4. And whereas, M/s. Bharat Stone Crusher, (hereinafter called as ‘the Industry’) is engaged in production of stone grit & dust. During process the industry emits polluted Air.

5. And whereas the industry has applied for obtaining consent to operate under the provisions of the Air Act on 15.01.2008.

6. And whereas as per the letter No. P-11(32) Mines/Gr. II/2008 dated 03.10.2008 from the mining Department, Government of Rajasthan, the State Government has terminated the mining leases of masonry stone in the Kama and Deeg area. Therefore, there is no source of raw material to feed the stone crusher except illicit mining.

7. And whereas the industry was inspected by a committee constituted by the District Collector Bharatpur during 11.02.2009 to 13.02.2009 and during the course of inspection it was observed that:-

I. Vibratory Screen was not covered completely.

II. One of the wind breaking walls was dismantled.

III. Plantation has not been done all along the periphery of the unit to develop green belt.

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IV. System for cleaning & wetting of the ground and roads within the premises was inadequate.

V. Record regarding monthly production and raw material procured was not available at the unit.

8. And whereas a show cause notice for intended refusal of the application for consent to operate and intended closure direction under section 31A of the Air Act was issued on 06.01.2009 but the industry has failed to submit satisfactory reply to the same.

9. And whereas, it is, thus substantially evident that the industry has failed to install adequate pollution control measures and making emission of polluted and obnoxious matters into the environment and thus violating various provisions of the Air Act.

10. And whereas the State Board in order to prevent and control Air pollution being caused by the industry is competent to issue any directions under section 31A of the air Act in writing to any person, officer or authority and such person, officer or authority shall be bound to comply with such directions.

Therefore, the State Board, in exercise of the powers conferred upon it under the provisions of section 21 of the Air Act and having regard to non-compliance of the provisions of the Air Act and consequent pollution of air being cause by you, hereby refuses application for consent to operate under reference and in exercise of the powers conferred upon it under section 13A of the Air Act, issued following closure directions:-

i. You are hereby directed to close down your industrial plant immediately.

ii. District Collector, Bharatpur to ensure closure of the said industry.

iii. Executive Engineer, Jaipur Vidyut Vitran Nigam Limited, Deeg, Distt. Bharatpur shall disconnect the electricity supply to the said industry immediately and compliance report should be submitted to the State Board.

iv. Regional Officer, Regional Office, Rajasthan State Pollution Control Board, Alwar is directed to seal the Diesel Generator sets if any and report that the direction as above have been complied.

Please note that the non-compliance of the above directions is punishable under Section 37(1) of the Air Act with imprisonment for a term which shall not be less than one year and six months but which may extent to six years and with fine.”

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3. Similar orders were passed by the Board in relation to a large

number of stone crushers in the same area on different dates, like

order dated 14th July, 2009 in other cases, para materia order dated

21st July, 2009 in the case of Bharat Stone Crushers. The other

Appellants challenged these orders by filing an appeal before the

Appellate Authority constituted under Section 31 of the Air (Prevention

and Control of Pollution) Act, 1981 in the State of Rajasthan. The

Appellate Authority while dealing with the cases of other appellants in

relation to order dated 14th July, 2009, vide its order dated 17th

August, 2011 set aside the order passed by the Board in those cases

and disposed of the appeals with the following directions:

“34. Keeping in view the aforesaid analysis, we find it fit to allow these appeals and sets aside and quashes the impugned order Annexure 8 dated 14.7.009 and Annexure 11 dated 04.02.2010 in the case of M/s V.K. Stone Crusher (or similar orders in other appeals) and remit these cases to the Board with the following directions:

1. It may first be verified that the appellant stone crushers are not in prohibited zones of Forest Department (Protected Forest) or in the zone of 500 meters zone on both sides of the verified/authorised Brij Chaurasi Kos Parikrama Marg. An authorised map of the protected forest area parikarma marg be obtained from the Forest Department/Collector, Bharatpur or any other competent authority in this regard.

2. The Board itself should examine in detail, the implication of Indian Bureau of Mines, Ministry of Mining, Government of India letter dated 18.8.10 (R/8) and see how it actually affects the Stone crushers and what action if any is required to be taken at its end.

3. In case the Stone Crushers do not fall in the prohibited zones, it may be ensured by the Board that they are implementing the pollution control measures as required under the Act and Rules.

4. It may further be checked whether they have remedied the defects as pointed out in the earlier inspection or any further inspection that the Board may feel is required to be done, by

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following the laid down procedures and exercising due diligence to avoid any inconsistencies, contradictions etc.

5. Though termination of Mining Leases is not directly a concern of the Board, however, as observed in judgments of the Hon’ble High Court dated 08.12.2009 and dated 23.11.2010 (as quoted above) illegal mining, functioning of stone crushers and consequent pollution and damage to the environment cannot be checked when the documents, are examined at the time of inspection and submission of returns.

35. Based on the aforementioned points (1 to 5) and others as required and provided for under the Act and Rules, the Board is directed to reconsider the consent to operate the appellants Stone Crushers following due procedures.”

4. It is the case of the Appellant that in order to overreach the order

of the Appellate Authority dated 17th August, 2011, the State

Government of Rajasthan on 25th August, 2011 imposed a complete

ban on operation of stone crushing units in that entire sector. Vide

order dated 25th August, 2011, the RSPCB in furtherance to the

powers vested under Section 5 of the Environment (Protection) Act,

1986 and Section 18 of the Air (Prevention and Control of Pollution)

Act, 1981 (hereinafter the ‘Air Act’ ) issued directions in this regard

noticing various facts including the orders passed by the Hon’ble High

Court as well as the need to prevent such activities in order to prevent

air pollution and the fact that the mining leases have already been

terminated vide order dated 17th April, 2008 passed the following

directions:

“1. Whereas the Braj area, which includes Tehsil Deeg and Kaman of District Bharatpur, is of great ecological, archaeological and religious importance. 2. And whereas a number of stone crushing units are in operation in Tehsil Deeg and Kaman of District Bharatpur to manufacture “Gitti” of different sizes and in the process make discharge of air pollutants in the

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environment which results into pollution of air and degradation of environment. 3. And whereas the people of this part of the Braj area as also the pilgrims visiting the religious places situated therein and performing Parikarma have been complaining about serious threat to their life and health and widespread damage to the environment caused due to emissions of environmental pollutants as a result of carrying on of large scale illegal mining and stone crushing activity in the area. 4. And whereas the provisions of clause (a) of section 2 of the Environment (Protection) Act, 1986 (hereinafter referred as to the “EP Act”), define environment as to include water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property. 5. And whereas the provisions of clause (a) of section 2 of the Air (Prevention and Control of Pollution) Act, 1981, (hereinafter referred as to the “Air Act”), define air pollutant to mean any solid, liquid or gaseous substance present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment. 6. And whereas the stone crushing plans are in operation in violation of the provisions of the EP Act and the Air Act, as also in utter disregard of the directions, dated 20.10.2004, of the Hon’ble Rajasthan High Court in the matter of D.B. Civil Writ Petition No. 7544/2003,

Ashwani Chobisa V/s. Union of India and Others. 7. And whereas with a view to restore the environment and to protect it from further degradation, to protect the places of religious and archaeological importance and to safeguard the life and health of the people, inhabiting or visiting the Braj area, from pollution of air arising from mining operations, the State Government, vide order dated 17.4.2008, terminated the mining leases in the area. 8. And whereas in a meeting held under the Chairmanship of the Additional Chief Secretary (Forest & SI), on 23.06.08, it was decided that the stone crushing units, located in the area, should be closed down for the reasons that they were being fed on the raw material derived from the sources of illegal mining and that most of the crushers are located on the road side and are causing health/environmental hazard and nuisance to the inhabitants and pilgrims. 9. And whereas the State Government, vide notification dated 13.11.09, declared areas of Tehsil Deeg and Kaman, District Bharatpur, where mining was being carried out, as reserve forests. 10. And whereas on a reference from the Chief Controller of Mines, Indian Bureau of Mines, Nagpur,

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vide letter no. N-1011/9/2010-CCOM 1795, dated 10.06.10, regarding illegal mining in the protected forest area of hilly terrain of sacred Braj area, a team consisting of Assistant Controller of Mines and Assistant Mining Geologist, Ajmer, Regional Office, IBM, alongwith the officials of the Mining and the Forest Department and the officials of the District Administration of Bharatpur and Mathura, visited the entire Braj area, during 26.06.10 to 01.07.10, where mining operations were/are carried out. 11. And whereasduring inspection from 26.06.10 to 01.07.10, by the team, referred to in the preceding para, it was observed that illegal mining of Silica Sand and Quartzite was being carried out mainly in Bolkheda, Lehsar and Levra areas as it was very difficult to stop illegal mining, for the reason that these areas are highly sensitive and that illegally mined mineral is supplied to the stone crushing units located in Angrawali, Bilang, Lehsar, Kaman, Seu Villages in District Bharatpur, Rajasthan. 12. And whereas the team, referred to hereinabove in the preceding paras, on the basis of findings of inspection has recommended that in order to stop illegal mining of Silica Sand and Quartzite, the crushers located in Angrawali and Bilang areas and falling in Braj Region should be closed immediately. 13. And whereas on the recommendations made in the report of IBM, the Ministry of Mines, Government of India, vide letter dated 18.8.10, asked the State Government to close down the stone crushers in the Braj area. 14. And whereas the State Government considers that the operation of stone crushing units in Tehsil Deeg and Kaman of District Bharatpur, deriving raw material from the illegal sources of mining which is taking place in the area, is resulting into pollution of air and degradation of environment and is thereby causing damage to the places of religious and archaeological importance and endangering life and health of the people inhabiting of visiting the Braj area. 15. And whereas the State Government, in exercise of the powers conferred upon it under section 5 of the EP Act read with Notification S.O. 152((E) dated 10.02.1988 of the Ministry of Environment, Forests and Wildlife, Government of India, New Delhi, and section 18 of the Air Act, is empowered to issue directions to the State Board and the State Board is bound by such directions issued by the State Government.”

5. Against the order dated 25th August, 2011, the present Appellant

also filed an appeal before the Appellate Authority. The Appellate

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Authority vide its order dated 3rd July, 2013 dismissed all the appeals

stating that it lacks jurisdiction to adjudicate the dispute raised and

held as under:

“From perusal of the said order, it is manifest that Hon’ble High court has directed that effect of the order dated 25.8.2011 has to be looked into before dealing with the merits of the case. Order dated 25.8.2011 passed under Section 5 of the Environment (Protection) Act, 1986 and section 18 of the Air (Prevention and Control of Pollution) Act 1981, cannot be looked into owing to lack of jurisdiction of this appellate authority to determine the legality or illegality of the same for the reasons that Section 18 of the Air (Prevention and Control of Pollution) Act 1981 pertains to the powers of the Central or State Government to give directions to the Central or State Board, as the case may be and similarly, Section 5 of the Environment (Protection) Act, 1986 pertains to the power of the Central Government to give directions to any person, officer or any authority. The powers under this section can also be invoked by the State Government under its delegated authority. Further, Section 31 of the Air (Prevention and Control of Pollution) Act 1981 provides that any person aggrieved by an order made by the State Board, may prefer an appeal to the Appellate Authority. Since order dated 25.08.2011 was passed by the State Government under section 5 of the Environment (Protection) Act, 1986 and Section 18 of the Air (Prevention and Control of Pollution) Act 1981 and not by the State Board so, this Appellate Authority is lacking jurisdiction to adjudicate the same. Learned Counsel for the appellants Shri S.K. Shukla has also fairly conceded this fact. It is an admitted fact that some of the appellants have challenged the said order by filing Writ Petitions before the Hon’ble High Court. In view of the above discussion, when this appellate authority cannot examine the legality or illegality of the order dated 25.08.2011 and this aspect has to be considered before deciding the merits of the case as directed by the Hon’ble High Court, these appeals cannot be proceeded further. Hence, these appeals are dismissed with a condition that if the writ petition filed against the order dated 25.8.2011 is decided against the State then the appellant/appellants will be at liberty to approach this appellate authority for revival of the appeal/appeals.”

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6. Against the order of the Appellate Authority dated 3rd July, 2013,

the Appellant has filed an appeal before the Tribunal on 12th

November, 2013 being Appeal No. 99 of 2013. Aggrieved from order

dated 25th August, 2011 passed by the State of Rajasthan, the

Appellant also filed an appeal on 2nd November, 2013 before the

Tribunal which came to be registered as Appeal No. 100 of 2013.

Notices on both these appeals were issued by the Tribunal. After the

matter was heard on few dates, the appellant filed M.A. No. 531/2014

stating that under mistaken impression the case has been titled as an

appeal (Appeal No. 100/2013) be treated as an application under

Section 14 of the NGT Act, 2010. This prayer was allowed by the

Tribunal without prejudice to the rights and contentions of the parties

and consequently Appeal No. 100/2013 came to be registered as

Original Application No. 216/2014. However, the prayer clause of the

application remains the same as that of the appeal. The original

Application No. 216/2014 (originally Appeal No. 100/2013), challenge

was to the order dated 25th August, 2011 simplicitor while in Appeal

No. 99/2013, the challenge was to the order passed by the Appellate

Authority dated 3rd July, 2013. This is how both these cases had come

up for final hearing together.

7. On behalf of the State of Rajasthan and RSPCB, it is submitted

that the present application and appeal both are hopelessly barred by

time and they deserved to be dismissed on that short ground alone.

However, on merits, it is submitted that State of Rajasthan had vide

its order dated 17th April, 2008 terminated all mining leases operating

in the area ‘Brij Chaurasi Kos Parikarma Marg’. After termination of

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the mining leases and noticing that the crushing industry was a

polluting crusher, the Board had issued show cause notice on 6th

January, 2009 and passed appropriate directions in relation to closure

of the stone crusher unit on 21st July, 2009. According to them, it was

not only in relation to this stone crusher but all the stone crushers in

that area were ordered to be closed. It is further pointed out that all

other stone crushers have shifted to the new sites allotted. It is only

the appellant who is persisting with the carrying on the stone crushing

activity at the site in question. There is no challenge raised before the

Tribunal to the order dated 21st July, 2009 and consequently no other

orders can be challenged. Furthermore, vide Notification dated 13th

November, 2009, the area in question was declared as ‘Reserved

Forest’ and even that Notification has not been challenged in any

proceedings. It is submitted that the Hon’ble High Court of Rajasthan

vide a detailed judgment dated 20th August, 2010 had directed the

State and the Board to ensure that pollution free environment remains

there. The State Committee was directed to submit recommendations

for identifying stone crusher zones and place its recommendations

before the Court. The crushers were permitted to operate temporarily

and the Board was required to inspect them and provide them an

opportunity and pass appropriate orders. If the orders passed were

against the stone crushers, they were free to challenge the same in

accordance with law. This writ petition was decided by the Rajasthan

High Court against the order dated 4th February, 2010 passed by the

Board directing closure of the stone crushers. In other writ petitions,

another Judge of Rajasthan High Court had taken a different view and

declined to interfere in the orders of the Board and on the same date

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directed the closure. In intra court appeal filed by the Appellant

against both the orders of the learned Single Judge afore referred, the

Division Bench delegated the applicants to prefer an appeal before the

Appellate Authority constituted under the Air (Prevention and Control

of Pollution) Act, 1981 and observations made in the judgment of

respective learned Single Judges were set aside so as to enable the

parties to raise issues before the Appellate Authority. The Appellate

Authority had accepted the appeal partly set aside by order of the

Board and sent them for reconsideration before the Board vide order

dated 17th August, 2011.

8. Before we proceed to examine the merits or otherwise the

contentions raised by the parties before the Tribunal, it is necessary to

notice that some of the other persons placed similar to that of the

present appellant had filed writ petitions before the Rajasthan High

Court praying for quashing of the directions issued by the RSPCB

dated 25th August, 2011 as well as the order dated 30th September,

2011 passed by the RSPCB declining to grant consent to the crushers.

Three of such writ petitions had been transferred by the Rajasthan

High Court to the Tribunal vide its order dated 21st January, 2014

whereupon they were registered as separate applications vide order of

the Tribunal as O.A. No. 54/2014. We would be dealing with these

transferred cases by a separate judgment.

9. The learned Counsel appearing for the Appellant/Applicant has

contended that the present applications/appeals are not barred by

time against the directions issued by the Board as well as vide its

order dated 25th August, 2011 has no nexus to the objects sought to

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be achieved even under the provisions of the Act of 1986. The Ban is

arbitrary and has no ground or study to support the same. It is also

contended that they are 3 km away from the belt of ‘Brij Chaurasi Kos

Parikarma Marg’ and as such there is no justification for the Board to

pass order of closure. The exercise of the authority and power by the

State Government and the Board both are disproportionate and

without proper foundation. The learned Counsel appearing for the

respondents have vehemently contended that both the

appeals/applications are barred by time and are liable to be dismissed

on that ground. Further, their contention is that the appellants have

raised no challenge to the order of the Board dated 21st July, 2009,

which disentitles the appellant/applicant from questioning the

correctness of any consequential order thereto and they have also not

challenged the Notification of the State Government dated 17th April,

2008 and 11th November, 2009. Thus, the challenge to other orders

would not be maintainable. According to the learned Counsel, the

conduct of the appellants disentitled them from claiming any relief

from the Tribunal particularly when all the other stone crushers have

shifted to the new sites. If the appellants or the mines are permitted to

operate, it will cause serious environmental pollution particularly air

pollution and is bound to thrive of illegal mining.

10. The first issue that comes up for consideration of the Tribunal is

whether the present appeals/applications are barred by limitation as

contended by the respondents?

There is no dispute to the fact that in Appeal No. 99 of 2013, the

challenge is to the order of the Appellate Authority dated 3rd July,

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2013. This appeal was filed before the Tribunal on 2nd November, 2013

along with appeal or even at the time of hearing of this appeal, no

application for Condonation of delay has been filed. In terms of

Section 16 of the NGT Act, 2010, the appeal before the Tribunal can

be filed within a period of 30 days from the date on which the order or

decision or direction is communicated to the appellant. If an appeal is

filed beyond the prescribed period of 30 days, in terms of the proviso

to Section 16 of the NGT Act, the Tribunal is vested with powers of

condoning the delay but not exceeding 60 days. In other words, if an

appeal is filed beyond the total period of 90 days, the Tribunal will

have no jurisdiction even to condone the delay. Though, as already

noticed in the present case there is no application for condoning the

delay. Under Section 16(f) of the NGT Act, appeal against the order of

the Appellate Authority constituted under Section 31 of the Air Act lies

to the Tribunal, rightly so it has been tilted as an appeal by the

Appellant. The present appeal has admittedly been filed on 2nd

November, 2013 and there is a delay of more than 3 months in filing

the present appeal, which is beyond the prescribed period of limitation

i.e., 30 days. Here we may refer to the judgment of the Tribunal where

it has been held that the Tribunal has no jurisdiction to condone the

delay beyond the period of 90 days including the prescribed period of

limitation of 30 days in the case of Sunil Kumar Samanta v. West

Bengal Pollution Control Board 2014(2) All India NGT Reporter Part 5

(Delhi) 250 where the Tribunal discussed the entire law on the subject

as well as the provisions of other statutes which contained, if not

identical, similar language and came to the conclusion that the

provisions of the NGT Act in relation to the limitation prescribed under

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Section 16 were mandatory and not directory. It will be useful to refer

to the findings recorded by the Tribunal in this regard.

"14. The policies underlying the law of limitation are ultimately based on justice and convenience and an individual should not live under the threat of a possible action for an indeterminate period since it would be unjust. Prescription of limitation takes in its ambit fairness and expeditious trial. Indefinite uncertainty in relation to bringing an action would be opposed to public policy. This concept is applicable with great emphasis to the environmental jurisprudence where the project proponent may invest large amount for making its project operational. Challenge to such project on the ground that it does not have any Environmental Clearance or otherwise, has to be within a specified time, as otherwise it would not only be unfair but also be seriously prejudicial to the interest of a party. Vigilance in the pursuit of rightful claims should be encouraged so that these are ethical or rational justifications for the law of limitation. 15. We have already noticed that NGT Act is a self-contained code in itself. It provides the forum/procedure that has to be adopted, the limitation period within which the jurisdiction of the tribunal gets invoked, and the power and functions of the tribunal in explicit terms. As a self-contained code, it does not admit of any ambiguity with regard to application of other laws in the adjudicatory process of the tribunal. The legislature in its wisdom has worded provisions of Section 16 of the NGT Act so as to prohibit even filing of an appeal beyond a total period of 90 days. The language of these provisions clearly demonstrates the legislative intendment on excluding application of general law of limitation to this special statute. Such a view would also find clear support from the language of Section 29(2) of the Limitation Act which postulates that when a special law prescribes for any period of limitation different from the period prescribed in the Schedule to the Limitation Act and the language of the provisions of such special law is indicative of express or implied exclusion, then Sections 4 to 24 (inclusive) of the Limitation Act shall apply only and to the extent they are not excluded by the Special Law. The cumulative reading of Section 16, particularly, the proviso and Section 29 of the Limitation Act leaves no doubt in mind that legislature had clearly intended to exclude the application of the general law of limitation provided under the Limitation Act from the NGT Act. Proviso to Section 16 of the NGT Act uses the expression 'allow it to be filed under this Section within a further period not exceeding 60 days'. The use of the negative

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language 'not' in the proviso makes it mandatory that appeals cannot be filed after the expiry of total period of 90 days and thus, there is lack of jurisdiction of the tribunal to condone the delay beyond a total period of 90 days. The framers of law, where, in their wisdom wanted to give a benefit and/or restrict or place embargo on exercise of a right, have done so by using specific language in Section 16 of the NGT Act. A special concession is made available to an appellant to file an appeal beyond 30 days, the initial period of limitation prescribed under that provision. The framers there put a specific embargo on the power of the Tribunal not to entertain an appeal after the expiry of a further period of 60 days. Thus the legislature, by necessary implication excluded the application of general law of limitation from the provisions of the NGT Act. At this stage we may refer to the judgment of the Supreme Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133, where the Supreme Court was dealing with the provisions of the Representation of the Peoples' Act, 1951 and the applicability of the provisions of the Limitation Act. The Court in relation to the interpretation of the language of Section 29(2) of the Limitation Act held as:

"17. What we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is 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. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are 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 view, even in a case where the special law does not exclude the provisions of Section 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."

16. From the above dictum of the Supreme Court of India, it is clear that the exclusion can be by explicit language or even by necessary implication. It will depend

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upon the scheme of the Act, it being a self-contained code and what is the intent of legislature? Furthermore, in the case of Union of India v. Popular Construction & Co. AIR 2001 SC 4010, the Supreme Court held that the word 'excluded' appearing in Section 29(2) of the Act would also include 'exclusion by necessary implication'. In the case of Gopal Sardar v. Karuna Sardar, (2004) 4 SCC 252, the Supreme Court read exclusion by implication, where some of the provisions in West Bengal Land Reforms Act, 1955, provided for giving benefit of Section 5 of the Limitation Act but Section 8 of the said Act did not make such a provision. The court took the view that legislature consciously excluded the application of Section 5 of the Limitation Act. 19. The bare reading of the above provision shows that power to condone the delay is vested with the Tribunal under that Act but the said appeal cannot be permitted to be filed before the appellate tribunal beyond the period of 60 days. The expression used in the proviso to the section is 'allow it to be filed within a further period not exceeding 60 days.' This provision came up for consideration before the Supreme Court in the case of Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission, (2010) 5 SCC 23, where the Supreme Court held that the appellate tribunal had no jurisdiction to entertain the appeal beyond the prescribed period of 120 days specified in Section 125 of the Electricity Act and Section 5 of the Limitation Act was not applicable. It was held that the proviso to Section 125 of the Electricity Act and the interpretation attracting the application 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. 49. In contradistinction thereto, the provision of Section 16 of the NGT Act is specific, unambiguous and clearly conveys the legislative intent of making the provisions 'mandatory'. The provision of Section 16 of the NGT Act, undisputedly has inbuilt element of consequences. The party loses its right to even institute an appeal after the prescribed period of limitation and a duty is cast upon the Tribunal not to permit such institution. As already stated by us above, the language of Section 16, by necessary implication excludes the application of the general law of limitation. Thus, it cannot be said that the language is pari materia to Order VIII Rule 1 and hence the consequences thereof should be identical. 53. From the above discussion, it is clear that provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, do not impose any embargo upon the power of the Court to extend the time. The provision is in the domain of procedural law and was held to be 'directory' by the

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Supreme Court. On the contrary, the provision of Section 16 of the NGT Act is in unambiguous language and imposes restriction upon the power of Tribunal to permit even institution of an appeal beyond the prescribed period. Besides this and for the reasons afore-recorded, the provision has to be construed as 'mandatory'. 54. Having dealt with the various aspects of this case and the rival contentions raised on behalf of the respective parties we are of the considered view that the provisions of Section 16 of the NGT Act are unexceptionally 'mandatory'. The said provision clearly conveys the legislative intent of excluding the application of the provisions of the Limitation Act, 1963. Further, with approval we reiterate the view taken by the Tribunal in the cases referred supra that this Tribunal has no jurisdiction to condone the delay beyond the total period of 90 days provided under Section 16 of the NGT Act. In fact, the Tribunal cannot permit even institution of an appeal if there is such a delay."

11. In light of the above stated position of law, we have no hesitation

in holding that Appeal No. 99 of 2013 is barred by time. There is no

application for condonation of delay and in any case the Tribunal

would have no jurisdiction to condone the delay in excess of 90 days.

Thus, this appeal is liable to be dismissed on that short ground alone.

12. Now, we come to Application No. 216 of 2014. As already noticed

that on 2nd November, 2013 when the Applicant/Appellant instituted

this appeal no. 100/2013, the challenge had been to the directions

issued by the RSPCB vide its order dated 25th August, 2011. We have

already reproduced relevant part of the order which stated that in

order to prevent and control pollution of air, to restore the

environment and to save it from further degradation and to safeguard

the lives of people and inhabitants of brij area, it was decided not to

allow establishment of new stone crushing units in the area i.e. Tehsil

Deeg and Kama of District Bharatpur. This appeal had to be filed

again within 30 days from the date of communication to the appellant

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in terms of Section 16(g) of the NGT Act. The appeal at best could have

been filed on or before 26th September, 2011 but the appeal was filed

on 2nd September, 2013, therefore there was a delay of more than two

years in filing the appeal.

13. For the reasons best known to it, the applicant filed M.A. No.

531/2014 praying to convert the appeal no. 100/2013 into an original

application. This application was allowed vide order dated 23rd

September, 2014 without prejudice to the rights and contentions of

the parties. The Principle of limitation is the principle of law and can

be taken at any stage. Appeal No. 100 / 2013 was hopelessly barred

by time as on the date of its institution. The question that further

requires determination by the Tribunal is whether its conversion into

an original application being O.A. No. 216/2014 would save the same

from rigours of the limitation period.

14. In our considered view, it would not in any way further the cause

of the appellant/applicant. It has to be treated in law an appeal

against the directions issued by the Board under Section 5 of the Act

of 1986 read with Section 18 of the Air Act and would not be

specifically appealable to the Tribunal in terms of Section 16(g) of the

NGT Act. Mere titling differently as an application would not save the

period of limitation. In the alternative, even if we treat this application

as an application under Section 16(g) of the NGT Act, even then, this

application would be barred by time in terms of Section 14 of the NGT

Act. An application has to be filed within 6 months from the date of

which cause of action for such dispute first arose. The Tribunal is

vested with the powers of condoning the delay in excess but not

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exceeding 60 days in terms of proviso to Section 14(3) of the NGT Act.

This application as already noticed has been filed after more than two

years. It would even be barred by limitation under Section 14 of the

NGT Act. Even in this case, the appellant has not filed any application

for Condonation of delay. Prayer for Condonation of delay even if made

now would be in vain and Tribunal would not be able to grant such

relief. The Tribunal has no jurisdiction to condone the delay in excess

of 90 days if the appeal was filed under Section 16(g) and 8 months if

it was an application under Section 14 of the NGT Act from the date

when the cause of action first arose. The principles stated in the case

of Sunil Kumar Samanta v. West Bengal Pollution Control Board 2014(2)

All India NGT Reporter Part 5 (Delhi) 250 (Supra) would be a complete

answer to the contention raised on behalf of the Applicant/Appellant.

Thus, even this Application No. 216/2014 is hopelessly barred by the

time and is liable to be dismissed on that ground alone.

15. Dehors the above finding, we also find merit in the contention of

the respondents that the appellants are not entitled in law to

challenge these orders and furthermore it is their conduct which

would disentitle them from claiming any relief from the Tribunal. As is

clear from the above narrated facts on 17th April, 2008, the State of

Rajasthan had terminated all the mining leases in the area in

question. The Board had passed a closure order against the appellant

on 21st July, 2009. On 13th November, 2009, the State of Rajasthan

issued another Notification declaring the entire area in question as a

‘Reserved Forest’ area. The purpose of all these was to prevent the

environment, air pollution and ensure that the large number of

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pilgrims and inhabitants of the area do not suffer cause of pollution

resulting from indiscriminate mining and stone crushing activity in

the specified areas. Not only this, all other stone crushers have

already shifted to the newly specified areas except the present

appellant. The appellant was found to be causing pollution as stated

in the show cause notice issued by the Board on 20th January, 2009

and the order dated 21st July, 2009. Strangely, the appellant did not

challenge the order dated 21st July, 2009 before the Appellate

Authority. It was the other Appellants who had appealed before the

Appellate Authority constituted under Section 31 of the Air Act which

resultantly passing of the order dated 17th August, 2011. The

appellant filed an appeal against the order of 25th August, 2011 and

the order of the Appellate Authority before the Tribunal in the order

dated 3rd July, 2013 subject matter of the appeal impugned in appeal

no. 99/2013, the Appellate Authority had held that it lacks

jurisdiction to entertain the appeal. The appellant for reasons best

known to it did not take timely steps against the said order and

permitted it to become barred by time. Similarly, the order dated 25th

August, 2011, the appellant slept over the rights for more than two

years. A litigant who claims for relief from a Court or Tribunal is

expected to be vigilant of his rights and obligation both. The Rajasthan

High Court had declined to interfere in the orders passed by the

Rajasthan High Court in the connected matters directing closure of

the stone crusher. Those matters had been referred to the Appellate

Authority and decided against the appellants therein. The appellant on

the one hand has also not disclosed these complete facts in the

application while on the other hand he has not all through this period

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did not raise any challenge to the orders dated 17th April, 2008, 21st

July, 2009 and 13th November, 2009. These very orders in fact are the

very foundation of the orders dated 25th August, 2011 and 3rd July,

2013 challenged in these appeals/applications. The orders passed by

the Rajasthan High Court were permitted to attain finality.

16. The entire conduct of the appellant is such that would disentitle

him for claiming any relief before the Tribunal either in law or on

merits. Consequently, for the reasons afore-stated, we dismiss both

the Appeal No. 99 of 2013 and O.A. No. 216 of 2014 on the ground of

limitation as well as on merits without any order as to costs.

17. M.A. Nos. 1015 of 2013 and 1016 of 2013 do not survive for

consideration as the main applications itself have been dismissed.

Justice Swatanter Kumar Chairperson

Justice M.S. Nambiar Judicial Member

Dr. D.K. Agrawal Expert Member

Mr. Bikram Singh Sajwan Expert Member

New Delhi 10th December, 2015