Vimal Bhai & others v. Union of India & others (2005.09.29)

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 17682/2005, W.P.(C) 17683/2005, W.P.(C) 17684/2005

VIMAL BHAI and ORS ….. Petitioners

versus

UOI and ORS ….. Respondents

CORAM:HON`BLE THE ACTING CHIEF JUSTICEHON`BLE MR. JUSTICE MADAN B. LOKUR

ORDER 29.09.2005

This petition challenges an order dated 20th May, 2005 passed by the National Environment Appellate Authority dismissing the petitioners appeal as time barred after rejecting their application for condonation of delay.

The petitioners had filed an appeal challenging the environment clearance granted by the Ministry of Environment and Forests for setting up of Loharinag-Pala Hydroelectric Power Project (600 MW) in Uttarkashi District of Uttaranchal.Though the Appellate Authority is to comprise of one Chairman, one Vice Chairman and three Technical Members but the Authority at the relevant time was a one man Authority consisting only of the Vice Chairman who has passed the impugned order.

The appeal was filed by the petitioners on 1st April, 2005 while the clearance was granted on 8.2.2005. The period of limitation prescribed under the relevant Act is 30 days.It was in this context that the Petitioners sought condonation of delay on the ground that the fact of grant of clearance come to their knowledge much after the clearance was granted.The Vice Chairman of the Appellate Authority rejected their plea for condonation on the ground that Petitioner No.1 (Appellant No.1 therein) had knowledge about the environment clearance after it was issued and that the petitioners have not been able tofurnish any credible explanation of what prevented them from filing the appeal within 30 days from the order of clearance, that is, 8.2.2005.

The Vice Chairman passed a detailed order ignoring that the petitioners represented an area where any clearance granted by the Government of India is said to be not easily accessible and that the delay involved was only of 23 days. The Appellate Authority has also overlooked that these petitioners deserve to be heard on merits as the order of clearance and setting up of the project was bound to affect a sizeable population in the area. As against this the Authority has adopted a very hyper-technicalpproach in rejecting the petitioners application for condonation of 23 days delay instead of dealing with their plea on merit.This order in our view is unsustainable and is quashed. The petitioners` appeal shall revive. The Appellate Authority should now consider their appeal on merits and pass appropriate orders in accordance with law.

While considering this matter it was noticed by this Court that the Union of India has failed to constitute the National Environment Authority under the Act of 1997 and on the contrary allowed this Authority to become a one-man show when the statute prescribed its composition which requires a Chairman, Vice Chairman and three Technical Members. By Court order dated 12th September, 2005 the Union of India was, accordingly, directed to file an affidavit indicating therein the steps taken by it for composiion of the Appellate Authority. This affidavit has been filed and it is stated that steps were taken from time to time for reconstitution of this Authority. It is explained that a retired Judge of the Supreme Court has now been nominated but some modalites about the perks and salary of the Chairman are being processed in the Finance Ministry.

Given regard to the importance of the Authority created under the National Environment Authority Act, it is appropriate to direct the Union of India and all its concerned functionaries to take requisite steps for clearing the proposals related to the appointment of the Chairman of the Appellate Authority and other Technical Members and reconstitute the Authority within 45 days.The Registrar to fax this order to Secretary Ministry of Finance and Secretary, Ministry of Environment and Forest for compliance.

The petition is disposed of.

ACTING CHIEF JUSTICEMADAN B. LOKUR, J

SEPTEMBER 29, 2005

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