The National Green Tribunal. Photo: Anil Shakya
New Delhi: Of all the appeals that the National Green Tribunal (NGT) dismissed last year, half were on the technical ground that the appellants did not approach the body within the stipulated time period, analysis by the Indian Express has found.
In 2020, the tribunal dismissed 22 appeals against clearances issued to 20 projects, mostly by local residents. Of these 11 were dismissed because there was a delay in filing the appeal, the newspaper reported.
The NGT Act, 2010 gives affected parties the right to challenge the clearance given to a projected within 30 days, while the tribunal has the authority to condone another 60 days’ delay given “sufficient cause”. The clock starts ticking from the day the clearance is placed in the public domain, which both regulators and developers are legally required to.
The dismissals raise concerns that due process was not followed, the Indian Express reported, because as many as five of the 11 appeals dismissed on the technicality “were filed within 44 to 90 days, well within the outer limit”. Another appeal was filed on day 91, while four others were filed within two months beyond the 90-day limit.
Additionally, dismissals on technical grounds constituted 40% of all appeals (including those in which relief was granted). This is the highest ever percentage, IE reported, saying it was almost twice the share between 2017 and 2019.
In all the NGT dealt with 27 appeals, out of which it granted relief in three, dismissed 9 on merit and another 11 for delays. Three appeals were rendered infructuous.
The dismissal on technical grounds flies in the face of the NGT’s previous acknowledgement in the landmark Save Mon order that “sufficient cause” for not making the application within the period of limitation should be understood and applied in a “reasonable, pragmatic, practical and liberal manner”, depending upon the facts and circumstances of the case, and the type of case.
The NGT had observed in that order:
“The words ‘sufficient cause’ in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the Appellant.”
The Indian Express reported that the NGT had also recorded in the past that the “provision relating to condonation of delay should be construed liberally and ought not to be approached in a pedantic manner” and “no hard and fast rule can be laid down in this regard and the basic guiding factor is advancement of substantial justice.”
In 2020, the tribunal’s dismissal orders held the appellants “lethargic” or “careless” and their grounds for seeking condonation of delay “sketchy and superficial” or “vague and nebulous”. According to the newspaper, the tribunal also disregarded pleas that certain stakeholders might lack the wherewithal to routinely monitor government portals for information on project clearances.
Such ‘pedantic’ dismissals give cause to fears that the NGT is following in the path of its predecessor, the National Environmental Appellate Authority (NEAA). The Delhi high court had observed in a 2009 order that the Central government had emptied the authority of its value by not appointing a chairperson and vice-chairpersons for years together. The court observed that most of the appeals disposed of by the NEAA “have in fact been dismissed, comprised as it is of retired bureaucrats”.
“The NEAA is, therefore, at present neither an effective nor an independent mechanism for redressing the grievances of the public n relation to the environment clearances granted both either the state or the Central government,” the court added in that order.
A similar trend can be seen in NGT, which is mandated to have a full-time chairperson, and at least 10 judicial members and 10 expert members but is currently functioning with just three judicial and three expert members, apart from the chairperson.
The appointment of its current chief, former Supreme Court Justice A.K. Goel, in July 2018 came after the tribunal did not have a chairperson for six months. Within months of his appointment, statements made by Justice Goel warranted concern, including a claim that half of all petitions before the tribunal were filed by “blackmailers”.
SC issued notice in two dismissals
According to the Indian Express, the 11 appeals dismissed appealed permissions given to mine sand in Ganga (Uttarakhand); the clearance to the Bhogapuram greenfield airport in Andhra Pradesh; establishing a thermal power plant in Telangana; and clearances to coal and limestone mines in Chhattisgarh, Maharashtra and Gujarat.
In November, the Supreme Court had issued notices in at least two appeals that were dismissed by the NGT because of delay, in the clearances given to the Penganga coal mine in Maharashtra and the airport in Andhra Pradesh.
Ritwick Dutta, an environmental lawyer and founder of the Delhi-based Legal Initiative for Forest and Environment, told IE that the tribunal’s test of independence and expertise is in its function as the appellate authority. “It is surprising if the NGT shies away from hearing appeals on merit even when they are filed within 90 days. Not even 1% of projects are appealed against and the appellants, often project-affected people from the hinterlands, deserve to be heard within the limits of reasonability,” he said.