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N A T I O N A L G R E E N T R I B U N A L (PRINCIPAL BENCH, NEW DELHI)

APPEAL NO. 14 of 2011 Thursday, the 26th day of April, 2012

QUORUM

1. Hon’ble Shri Justice C.V. Ramulu (Judicial Member) 2. Hon’ble Dr. Devendra Kumar Agrawal (Expert Member) IN THE MATTER OF: Thervoy Gramam Munnetra Nala Sangam Represented by its Secretary K. Dhanraj, Thervoy village, Guimmidipoondi Taluk, Thiruvallur District Tamil Nadu 601 202 …. …. …. Appellant VERSUS 1. Union of India, Through the Secretary, Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi – 110 003 2. Tamil Nadu Pollution Control Board Through the Member Secretary 76, Mount Salai, Guindy, Chennai – 600 032 3. M/s State Industries Promotion Corporation of Tamil Nadu (SIPCOT), Through its Chairman and Managing Director 19-A, Rukmani Lakshmipathy Road, Egmore, Chennai – 600 008 …. …. …. Respondents

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(Advocates Appeared: Mr. Raj Panjwani, Senior Counsel with Mr. Ritwick Dutta and Mr. Rahul Choudhary, for Appellant, Ms. Neelam Rathore for Respondent No. 1, Mr. A Prasanna Venkat, for Respondent No. 2, and Mr. G.E. Vahanvati, Learned Attorney General of India with Mr. Sudarsh Menon and Mr. Rohit Sharma for Respondent No. 3)

J U D G E M E N T

(Judgment Delivered by the Bench)

Prelude:

1. It appears that the Ministry of Environment & Forests, Government of India

granted Environment Clearance (EC) in its file No. 21041/2009-IA-III dated 9.8.2010

to M/s State Industries Promotion Corporation of Tamil Nadu (SIPCOT) the

Respondent No. 3 herein for the development of Industrial Park at SIPCOT, Thervoy

Kandigai, Thiruvallur District, Tamil Nadu. Against the said order, an appeal was

available under Section 11 of the National Environmental Appellate Authority

(NEAA) Act to the NEAA, within (30) days from the date of such an order. However,

the NEAA would entertain an appeal before expiry of (30) days subject to limitation

provision - but not later than (90) days. Though, the impugned order was passed on

09.08.2010, no appeal under Section 11 of the NEAA Act was filed within (30) days

or on or before 17.10.2010.

2. However, aggrieved thereby, the Appellant herein approached the Hon’ble

High Court of Madras and filed Writ Petition (SR) No. 46718 of 2011, on 26th April

2011. It appears the Appellant filed MP No. 1 of 2011 in WP (SR) No. 46718 of 2011

bringing the fact that the National Green Tribunal (NGT) became functional in May

2011 and sought withdrawal of the matter. However, the Hon’ble High Court of

Madras on 08.06.2011 directed that the Petition be returned to the Appellant to file an

Appeal before this Tribunal, and the Deputy Registrar (Writs) returned the papers with

an endorsement dated 13.6.2011 as below:

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“As per Orders of Court dated 8.6.2011 in MP No. 1/11 in WP SR No.

46718/2011 this Petition is returned to file before the concerned

Tribunal”.

3. Thus the Appellant filed the present appeal before this Tribunal on 03.08.2011

which is numbered as Appeal No. 14 of 2011 (NGT).

Facts:

4. According to the Appellant, the project of the Respondent No. 3 is being

established at Thervoy Kandigai village which is adjacent to Reserve Forests of

Pallavakam and Peria Pulyur. Adjoining the Reserve Forest, there are about 250

hectares of land in survey No. 32/2 and 33/2 which is classified as Meikkal paramboke

(grazing land), which is being used traditionally for several hundred years, as grazing

land, and the landscape is almost similar to the adjacent Reserve Forest area. There are

thousands of trees and the local people collect minor forest produce and medicinal

herbs. There are more than 27 varieties of wild fruits and herbs which is a source of

livelihood to the local people.

5. On 13.11.2011, the Revenue Department of State of Tamil Nadu issued G.O.

(MS) No. 650 ordering transfer of title lands comprised in Thervoy Kandigai Village,

Survey No. 32/2 and 33/2 measuring 1127 acres, to the Project Proponent, SIPCOT.

The Appellant has raised many procedural and environmental issues. The Respondent

No. 3 filed a preliminary reply and raised an objection as to the maintainability of the

very Appeal by this Tribunal. Therefore, with the consent of the parties, we have taken

up the preliminary issue as to the maintainability of the Appeal.

6. Learned Attorney General of India, appearing for the Respondent No. 3 stated

that the Appeal is not maintainable for more than one reason. Firstly, there is no

provision under the NGT Act to entertain Appeals against Orders passed and/or

Environmental Clearances granted by the State or Central Government, before 18th of

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October 2010. Secondly, the Repealing Act i.e. the NGT Act has made it very clear

that an Appeal lies under Section 16 only against orders made on or after 18th of

October 2010. Thirdly, the Appeals already filed before the NEAA, before 18th of

October 2010, are all stand transferred to the NGT. Thus, there is no provision under

the NGT Act to entertain an Appeal against an order made before 18th of October,

2010, against which no Appeal has been preferred before the NEAA. The Repealing

Act, thus expressly stated the orders against which an Appeal lies and the Appeals

which are filed under the Repealed Act are protected. The Repealing Act i.e. NGT Act

has made its intention very clear. Section 6 (c) of the General Clauses Act has no

application, to the facts of this case, since the Appellant has not accrued any right

under the Repealed Act. Rather, implicitly the Appeal against those orders, passed

before 18th of October 2010, has been prohibited. Therefore, this Tribunal has no

jurisdiction to entertain the Appeal and the same is not maintainable.

Ms Neelam Rathore, Learned Standing Counsel for Respondent No. 1 adopted

the arguments of Learned Attorney General of India and stated that the intention has to

be culled out from the language of the Act. What is saved is the Appeals filed before

18.10.2010 before the NEAA and the orders that may be passed on or after 18th

October 2010. No other meaning can be given to the legislative intention, other than

this.

7. Learned Senior Counsel Shri Raj Panjwani, appearing for the Appellants

vehemently argued that though the impugned order was passed before 18th of October

2010 i.e. before the advent of the NGT Act, the Appeal is maintainable even against

such orders notwithstanding the language of the provisions of Section 16, 38(5) of the

NGT Act. The impugned order, though passed on 9th August 2010, an Appeal against

the same is maintainable in view of the provisions of Section 38(8) of the Act. There is

no ambiguity and the purpose of the Repealing Act is nothing but to substitute the

earlier NEAA Act and the very object of the Repealing Act is to effectively deal with

the Environmental matters and the Appellant cannot be thrown out at the threshold.

The NGT Act has replaced the NEAA Act and the Appellant accrued right of appeal

against the impugned order dated 09.08.2010 and the Appellant had (30) days’ time

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for filing appeal against the said order. But no appeal was preferred before NEAA

within (30) days or before the 18.10.2010 i.e., about (70) days and with effect from

18.10.2010, the NEAA Act was repealed with NGT Act. The Appeals already filed

before the NEAA before 18th of October 2010 are saved and as such the Appeals

which could not be filed before 18th of October 2010, also must be deemed to have

been saved and are maintainable before this Tribunal and absolutely there is no

embargo in entertaining such Appeals and there is no express bar in the Repealing Act.

On the other hand as contemplated under Section 38(8) of the NGT Act, such Appeals

are maintainable in view of the applicability of Section 6 (c) of the General Clauses

Act 1897. Therefore, it cannot be said that an Appeal against the impugned order is not

maintainable.

8. Learned Senior Counsel on either side elaborately argued and in support of their

arguments, relied upon various Judgments of the Apex Court and other High Courts

and also filed written submissions. We have given our earnest consideration to the

respective submissions made by the Learned Counsels on either side and perused all

the material made available on record and the case law cited.

9. Before going into the merits, it may be necessary to note the following sections

of NEAA Act, 1997 (the Repealed Act), the NGT Act, 2010 (the Repealing Act) and

the General Clauses Act, 1897, which are relevant for the purpose of disposal of this

matter:

NATIONAL ENVIRONMENT APPELLATE AUTHORITY ACT, 1997 Section 11. Appeals to Authority:- (1) Any person aggrieved by an order granting environmental clearance in the areas in which any industries, operations or processes or class of industries, operation and processes shall not be carried out or shall be carried out subject to certain safeguards may, within thirty days from the date of such order, prefer an appeal to the Authority in such form as may be prescribed;

Provided that the Authority may entertain any appeal after the expiry of the said period of thirty days but not after ninety days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

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NATIONAL GREEN TRIBUNAL ACT, 2010 Section 16. Tribunal to have appellate jurisdiction -- Any person aggrieved by — …………. (h) an order made, on or after the commencement of the National Green Tribunal Act 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 (29 of 1986); ………….

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 filed under this section within a further period not exceeding sixty days.

Section 38. Repeal and Savings. ---- 1. The National Environment Tribunal Act, 1995 (27 of 1995) and the National Environmental Appellate Authority Act, 1997 (22 of 1997) are hereby repealed (hereinafter referred to as the repealed Act).

2. Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act. 3. The National Environment Appellate Authority established under sub-section (1) of section 3 of the National Environment Appellate Authority Act 1997 (22 of 1997), shall on the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010, stand dissolved.

4. On the dissolution of the National Environment Appellate Authority established under sub-section (1) of section 3 of the National Environment Appellate Authority Act, 1997 (22 of 1997), the persons appointed as the Chairperson, Vice-chairperson and every other person appointed as Member of the said National Environment Appellate Authority and holding office as such immediately before the establishment of the National “Green Tribunal under the National Green Tribunal Act, 2010, shall vacate their respective offices and no such Chairperson, Vice-chairperson and every other person appointed as Member shall be entitled to claim any compensation for the

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premature termination of the term of his office or of any contract of service; 5. All cases pending before the National Environment Appellate Authority established under the sub-section (1) of section 3 of the National Environment Appellate Authority Act, 1997 (22 of 1997) on or before the establishment of the National Green Tribunal under the National Green Tribunal Act, 2010, shall, on such establishment, stand transferred to the said National Green Tribunal and the National Green Tribunal shall dispose of such cases as if they were cases filed under that Act. 6. The officers or other employees who have been, immediately before the dissolution of the National Environment Appellate Authority appointed on deputation basis to the National Environment Appellate Authority, shall, on such dissolution, stand reverted to their parent cadre, Ministry or Department, as the case may be. 7. On the dissolution of the National Environmental Appellate Authority, the officers and other employees appointed on contract basis under the National Environment Appellate Authority and holding office as such immediately before such dissolution, shall vacate their respective offices and three months’ pay and allowances or pay and allowances for the remaining period of services, whichever is less, for the premature termination of term of their office under their contract of service. 8. The mention of the particular matters referred to in sub-section (2) to (7) shall not be held to prejudice or affect the general application of section6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.

GENERAL CLAUSES ACT, 1897 Section 6. Effect of Repeal -- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears the repeal shall not ---

(a) Revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed

or anything duly done or suffered thereunder; or

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(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in

respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in

respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.

10. Admittedly, the impugned order was passed by the Respondent No. 1 on

09.08.2010 and no Appeal, as available under Section 11 of the NEAA Act, was filed

before the NEAA on or before 17.10.2010 (even after 70 days). The NGT Act came

into force on 18.10.2010. The Appellant filed WP No. 46718 of 2011 on 26th April,

2011. Thus, the remedy of Appeal available under Section 11 of NEAA Act was not

availed and the NEAA Act stood Repealed under the NGT Act 2010 with effect from

18.10.2010. Under these circumstances, as a statutory Tribunal, we have to examine

whether the present Appeal is maintainable.

11. In the Repealing Act (NGT Act, 2010), as noticed above under Section 16, it is

categorically emphasized that an Appeal lies to this Tribunal only against the orders

that are passed on or after 18.10.2010. Further, Section 38 (2) takes care of,

notwithstanding such Repeal, anything done or any action taken under the Repealed

Act shall be deemed to have been done or taken under the corresponding provisions of

the present Act and Section 38 (5) protects all the Appeals filed before the NEAA

before 18.10.2010 and stand transferred to the NGT and NGT shall dispose of such

cases as if they were cases filed under the NGT Act. According to the Learned

Counsel for the Appellant, the implicit meaning of these two Sections read with

Section 38 (8) does not debar filing of an Appeal, against an order made before

18.10.2010, to the NGT. According to him, it is impliedly implicit. It was also his

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submission that the words used ‘on or after 18.10.2010’ in Section 16 includes the

orders which are passed before 18.10.2010 also. The statement of objects and reasons

of the Act and intention thereof is very clear and the NEAA Act has been replaced by

the NGT Act. It is his submission that, the text and context of the Act and provisions

thereof must be read with the object and purpose of the enactment. In this regard he

relied upon judgment rendered by the apex court in RBI Vs. PLS General Finance

1987 (1) SCC 424 (450) para 33 which reads as under:

“38. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when the object and purpose of its enactment is known. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses the court must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the court construed the expression “Prize Chit” in Srinivasa and we find no reason to depart from the court’s construction.”

12. Learned Senior Counsel Mr. Raj Panjwani, stated that Section 6 of the General

Clause Act 1897 speaks that Repeal shall not affect any right acquired or accrued

under any enactment so repealed unless a different intention appears. The Appellant

acquired / accrued right of Appeal under Section 11 of the Repealed Act (NEAA Act)

before the Act could be repealed, unless a different intention appears, he is entitled to

maintain the Appeal. According to him absolutely there is no intention in the

Repealing Act to avoid or prohibit Appeals against the orders that are made before

18.10.2010. With regard to the submission as to “right accrued”, he placed heavy

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reliance on the judgment reported in 1975 MPLJ page 748 and AIR 1993 (SC) page

1188 which reads as under:

1975 MPLJ page 748, para 9:

“9. As a result of the settled legal position already stated, it is obvious that where can event has yet to happen on the happening of which alone right to taken advantage of the repealed enactment would arise, there is no ‘right accrued’ which could be saved in inspite of the repeal. The real position is that in a case where the event requisite for furnishing the cause of action to initiate a proceeding had not yet happened prior to the repeal even the question of taking advantage of the repeal provision had not come into existence. Such a situation in fact is even worse than a case where a right exists on the date of the repealing statute to take advantage of the provision repealed. As a already pointed out it is settled law that a mere right existing at date of the repealing statute to taken advantage of the provisions of the repealed Act is not a ‘right accrued’ within the meaning of the usual saving clause. On the other hand, where the event has happened prior to repeal, on the happening of which a right springs up or is acquired under the existing law, without anything more to be done, such a right is a ‘right accrued’ within the meaning of that expression.”

AIR 1993 (SC) page 1188 para 4 & 5:

“ 4………… The effect of the repealed Act by operation of Clause (e) of Section 6 of the General Clauses Act read with sub-section (2) of Section 81 is that, though the Act obliterates the operation of Act 7 of 1947, despite its repeal, the penalty, liability, forfeiture or prosecution for acts done while the repealed Act was in force were kept alive, though no action thereunder was taken when the Repealed Act was in force. The rights acquired or accrued or the liabilities incurred or any penalty, forfeiture or punishment incurred during its operation are kept alive. Investigations to be made or any remedy which may have been available before the repeal be enforced are also preserved. Such rights, liabilities, penalty, forfeiture or punishment, due to repeal “shall not lapse”……….what is unaffected by the repeal of the Act 7 of 1977 is a right accrued, etc. There is a distinction between a legal proceeding for enforcing a right acquired or accrued or liability, penalty, forfeiture, punishment incurred and the legal proceedings for acquisition of a right, the former is saved whereas the latter is not. In spite of repeal the right to investigation or to take legal proceedings remain unaffected and preserved as if the old Act continues to be operative……………Even in a case of bare repeal accompanied by a fresh legislation on the same subject, the provisions of the new Act will

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have to be looked into to find where and how far the new Act envisages a contrary intention affecting the operation of Section 6 of the General Clauses Act. Unless such contrary intention is manifested, liabilities, penalties, forfeiture or punishment under the Repealed Act will continue to exist and remain in force by operation of Sec. 6 of the General Clauses Act. 3. We have already seen that the Act did not evince any contrary intention. It merely reiterated the earlier law operating the field. Therefore, Clause (d) of Section 6 of the General Clauses Act gets attracted to the acts done or the penalties incurred or forfeiture or punishment had already been committed before the repealed enactment, though no criminal proceedings have been actually initiated under repealed enactment before its repeal.”

13. The above judgments have no help to the Appellant. Firstly, the judgment

reported in 1975 MPLJ page No. 748 clearly indicates that a mere right existing at the

date of repealing statute, to take advantage of the provisions of the repeal act, is not a

‘right accrued’ within the meaning of the usual saving clause. Only when the event

has happened prior to repeal, on the happening of each a right springs up or is

acquired under the existing law, without anything more to be done, such a right is

a ‘right accrued’ and not otherwise. In this case a right of Appeal was available

(right in rem) and unless and until it was acted upon before the repeal it cannot be said

it was a ‘right accrued’. At the most, it can be said, a right of Appeal was there subject

to doing something before the Act was repealed. Even the judgment reported in AIR

1993 (SC) page 1188, has no relevance, since this decision deal with the provisions of

Section 6 (d) and 6 (e) and not Section 6 (c) of the General Clauses Act 1897 wherein

‘right accrued’ occurs.

14. In so far as the words “unless a different intention appears”, it is argued by the

Learned Senior Counsel for the Appellants, that a careful reading of the provisions of

sub-section (5) and (8) of Section 38 and keeping in view of the object for which NGT

Act was enacted, it is clear that the intention of legislature was that all cases relating to

environmental protection and conservation of forest and other natural resources

including enforcement of any legal rights relating to environment should be heard and

decided by this Tribunal. Exclusion of any category of cases would defeat the very

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object and purpose of NGT Act, 2010. If such cases were to be excluded, the

legislature would have expressly provided so. On the other hand, the Section 38 (8) of

the NGT Act refers to the application of Section 6 of General Clauses Act. In this

regard, the Senior Learned Counsel had drawn attention of the Tribunal to the

following judgments, 1. AIR 1975 DEL. 258 (263-para 9), 2. AIR 1975 SC 1843

(1849-para 28) and 3. AIR 1957 SC 540 (Para 23), which reads as under:

AIR 1975 DELHI 258 (263-para 9):

“9. Section 6 contains the expression “unless a different intention appears”. The effect of these words is that the repealing Act can make a provision which would be contrary to Section 6 and to that extent can modify the operation of Section 6. Unless, therefore, the procedure laid down by the repealing Act is such that effect cannot be given thereunder to the rights and liabilities accrued under the repealed Act, the general rule that the new procedure would apply to the investigations and legal proceedings for the enforcement of old rights and liabilities would not be affected in any way by Section 6.”

This decision is not applicable to the case on hand. We have already discussed above

to say that the Repealing Act does not show any intention to permit an Appeal to be

maintainable even against those orders which are passed prior to 18.10.2010, as no

“right accrued” or liability arisen, as per Section 6 (c) of the General Clauses Act.

Further, this is a decision interpreting Section 6 (e) of the General Clauses Act, which

deals with a different situation and connotation and not as to ‘right accrued’.

AIR 1975 SC 1843 (1849-para 28):

“28. Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well established principles. The first is that “while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment” (see Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commr.). 54 Ind App. 421 = (AIR 1927 PC 242). The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals

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available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule, viz, (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the court to which appeal lay at the commencement of the suit stands abolished (see Garkapatti Veeraya v. N. Subbiah Choudhry 1957 SCR 488 = (AIR 1957 SC 540) and Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369).”

AIR 1957 SC 540 (Para 23):

“23. The right of appeal is not a mere matter of procedure but is a substantive right. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise………… In construing the articles of the Constitution courts must bear in mind a cardinal rule of construction that statutes should be interpreted, if possible, so as to respect vested right. The golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed. In the next place Courts must take into account the surrounding circumstances that existed at the time when the Constitution makers framed the Constitution and for which provision had to be made by them. In construing the articles relating to appellate jurisdiction of this Court it is well to remember the several categories of persons who were, at the date of the Constitution, interested in the right of appeal from judgments, decrees or final orders of a High Court to a superior court in one way or another.”

15. These judgments are also of no help to the Appellant. This is a case where on

the advent of the Constitution, the rights of the parties in a civil suit were protected by

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the Constitutional Court. The right of appeal in a civil case is a matter of substantial

right (“right in personam”). The aggrieved party to the suit is entitled to carry the

matter in Appeal. In the case referred to above, there was a civil suit pending between

the parties and the right of Appeal was vested right and therefore the Hon’ble Supreme

Court held that the Constitutional Courts must bear in mind cardinal rule of

construction that statutes should be interpreted, if possible, so as to respect vested

right. In the case on hand, neither there was any vested right or accrued right in favor

of the Appellant under the Repealed Act to be protected by the Repealing Act. In the

above judgment, it is made clear that even a vested right of Appeal can be taken away

by a subsequent enactment, if it is so provided expressly or by necessary intendment.

16. As discussed above, under Section 38(2) and 38(5) of NGT Act, certain acts

done and the Appeals filed before the NEAA, are protected by express provision of

law. Therefore, it must be deemed by necessary intendment that the Appeals from the

orders passed before 18.10.2010, against which Appeals could not be filed before the

NEAA, are not saved.

17. The words anything done or any action taken under Section 38(2) of the

Repealed Act shall be construed to be taken under the NGT Act, 2010. For example –

an Appeal was preferred before NEAA and the same was not processed or not

admitted or the condone delay petition was pending, or a decree passed for

compensation, restoration of environment, etc. was not executed as on 17.10.2010.

The Section 38(2) cannot be stretched to mean more than this.

18. Under Section 38(5) of NGT Act, the Appeals already filed and pending,

whatever may be the stage, are protected and stood transferred to this Tribunal.

Unfortunately, there is no provision expressly providing Appeals against the orders

made on or before 17.10.2010. Further, the language of Section 16, makes it clear that

Appeals are available only against the orders passed on or after 18.10.2010. If the

intention was otherwise, nothing prevented the legislature to say that an Appeal lies

against any order made in granting / rejecting environmental clearances by the Central

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/ State Governments. Thus, it must be deemed that the Appeal against an order made

on or before 17.10.2010 and no Appeal has been filed before NEAA, are impliedly and

implicitly excluded in view of Section 16, 38(2) and 38(5) since no right has been

accrued under Section 6 (c) of the General Clauses Act, 1897.

19. The Learned Senior Counsel Mr. Raj Panjwani, also relied upon the order of the

Hon’ble Supreme Court made in Vimal Bhai case dated 16.12.2010 in SLP (C) No.

12065 of 2009 which reads as under:

“ 1. The period of limitation prescribed for filing the appeals under the National Environment Appellate Authority Act, 1997 shall also apply to the applications/appeals which may be filed after the Bench of the Tribunal becomes functional. 2.The period between 18.10.2010 i.e., the date on which National Environment Appellate Authority stood abolished by operation of Section 38(5) of the 2010 Act and the date on which Bench of the National Green Tribunal becomes functional shall be excluded while computing the period of limitation for filing applications/appeals etc.”

Further, Hon’ble Supreme Court, vide its order dated 12.05.2011 also issued the

following direction:

“7. Those, who could not file petitions before the National Green Tribunal because it did not become functional, may do so within a period of 60 days from 30.05.2011. The National Green Tribunal shall give wide publicity to this direction so that aggrieved parties can file appropriate petitions etc. within 60 days from 30.05.2011. The petitions which are filed within the aforesaid period shall not be barred by time and be decided on merits. The parties shall also be entitled to file applications for interim relief before National Green Tribunal.”

In the above order the Apex Court has not dealt with a situation of the one being faced

by us in this Appeal. The Apex Court passed the above order only to facilitate those

who could not file Appeals against the orders passed on or after 18.10.2010 as the

Tribunal was not functionally effective between 18.10.2010 till May, 2011.

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20. Whereas, Learned Attorney General of India, Mr. G E Vahanvati, relied upon

the following case law in support of his arguments:

1. (2011) 4 SCC 548 para 8

2. (2009) 3 SCC 634 para 33 & 34

3. (1995) 1 SCC 104 para 53 & 54

4. (1980) 1 SCC 149 para 15

(2011) 4 SCC 548 para 8:

“8. It is well-settled that when a statute confers a right of appeal, while granting the right, the legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions, rendering the right almost illusory. Bearing in mind the object of the Act, the conditions hedged in the said proviso cannot be said to be onerous. Thus, we hold that the requirement of pre-deposit under sub-section (1) of Section 18 of the Act is mandatory and there is no reason whatsoever for not giving full effect to the provisions contained in Section 18 of the Act. In that view of the matter, no court, much less that appellate Tribunal, a creature of the Act itself, can refuse to give full effect to the provisions of the statute. We have no hesitation in holding that deposit under the second proviso to Section 18(1) of the Act being a condition precedent for preferring an appeal under the said section, the appellate Tribunal had erred in law in entertaining the appeal without directing the appellant to comply with the said mandatory requirement.”

(2009) 3 SCC 634 para 33 & 34:

“33. Unfortunately, the learned Single Judge as also the Division Bench of the High Court did not pose unto themselves the correct question(s). It misread the provisions of Section 86 to hold that the respondent was clothed with the jurisdiction of suspension and/or cancellation of the permit and impounding of the vehicle in terms of the order of the Court. This Court had merely spelt out the consequences emanating from contravention of the directions. Such directions, if read with the provisions of the Act, would mean that the procedure for suspension/cancellation of the permit and impounding of the vehicle must be followed as contained in the Act. Jurisdiction for the said purpose must be exercised by the authority under the statute. No statutory authority, whether empowered by this Court or otherwise, can act dehors the statute.

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34. The width and breadth of Article 142 of the Constitution although is wide, any direction issued thereunder by reason of an interpretation should not be expanded. The learned Single Judge of the Delhi High Court did precisely this. The Division Bench unfortunately did not consider this aspect of the matter. It is true that in one case the special leave petition was dismissed. But it was an unreasoned order. It did not create any precedent. Thus, when a letters patent appeal was maintainable, the Division Bench could have and, in our opinion, should have determined the question in accordance with law. We, therefore, are of the opinion that violation of the directions of this Court would merely entail the consequences which would mean that the respondent could proceed to take action only in accordance with law including the provisions contained in Section 88 of the Act.”

(1995) 1 SCC 104 para 52 & 53:

“52…… it was observed by Tindal, C.J., in the case of Kay v. Goodwing: (ER p. 1405) “the effect of repealing a statute is to obliterate it as completely from the records of the parliament as if it had never been passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law.” 53. The provisions of a repealed statute cannot be relied upon after it has been repealed. But, what has been acquired under the Repealed Act cannot be disturbed. But, if any new or further step is needed to be taken under the Act, that cannot be taken even after the Act is repealed.”

(1980) 1 SCC 149 para 15:

“15. The distinction between what is, and what is not a right preserved by the provisions of Section 6 of the General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere “hope or expectation of”, or liberty to apply for, acquiring a right. In Director of Public Works v. Ho Po Sang Lord Morris speaking for the Privy Council, observed:

“It may be, therefore, that under some repealed enactment, a right has been given but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation

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which is to decide whether some right should be or should not be given. On a repeal, the former is preserved by the interpretation Act. The latter is not.”

21. A combined reading of the above judgments, indicate that while granting the

right of Appeal under the Repealing Act (NGT Act), it was restricted to the orders that

have been passed on or after 18.10.2010 (Section 16 of NGT Act), and also taking up

the Appeals, which were filed before NEAA on or before 17.10.2010. Therefore, we

cannot hold that the intention of the legislature was to entertain Appeals even against

those orders passed on or before 17.10.2010, and the Appeals can be maintained

before this Tribunal. The Learned Attorney General of India rightly reminded us, that

we are only a creature of statute and we cannot stretch our jurisdiction beyond what is

expressly conferred by the Act. He also stated that no statutory authority, whether

empowered by the Supreme Court or otherwise, can act dehors of the statute. Further,

the Learned Attorney General of India was right in stating that the Hon’ble Supreme

Court has not empowered this Tribunal to act dehors of the statute in Vimal Bhai case

(above).

22. The provisions of a Repealed Act cannot be relied upon after it has been

repealed. The only thing that cannot be disturbed is what has been acquired under the

Repealed Act. The Appellant has not accrued any right which is protected by applying

the provisions of Section 6 (c) of the General Clauses Act, 1897. The distinction

between what is, and what is not a right preserved by the provisions of Section 6 of the

General Clauses Act is often one of great fineness. What is unaffected by the repeal of

a statute is a right acquired or accrued under it and not a mere “hope or expectation

of”, or liberty to apply for, acquiring a right. In the present case, the EC was granted

on 09.08.2010 and no Appeal was filed before 18.10.2010 under NEAA Act.

Therefore, nothing was done, though legally any person was entitled to file Appeal

under Section 11 of the NEAA Act. Further, it cannot be called as a pending case to be

decided under Section 38 (5) of the NGT Act. Section 6 of the General Clauses Act

cannot be relied upon to expand the operation of Section 16 or Section 38 (5) beyond

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their plain language. The Appellant neither accrued any right under the Repealed Act,

nor, the intention of the Repealing Act is to allow an Appeal of this nature to be

maintained.

23. Then the question that arises is as to whether the Appellant is left remediless.

The Learned Attorney General of India, stated that the Appellant is not remediless, and

he committed a mistake in filing an Application before the Hon’ble High Court of

Madras, seeking return of the papers for filing before this Tribunal, without examining

the legal provisions of the NGT Act. He also stated that the Appellant could have

pursued the matter before the High Court of Madras under Article 226 of Constitution

of India. It appears cases of this nature are very few and this matter relates to

environment and this Tribunal is specially constituted to deal with all environmental

disputes and throwing away the Appeal as not maintainable, appears to be

unreasonable, at the first instance. But, we are helpless, being statutory Tribunal; we

are bound by the language of the statute. Had there been a direction from the Hon’ble

High Court of Madras, to entertain the Appeal and dispose of the same on merits, we

could have done so, as we are bound by the orders passed by the Constitutional Courts.

The Appellant sought withdrawal of the Writ Petition from the Hon’ble High Court of

Madras, to enable him to approach this Tribunal and papers were returned. Without

there being any order from the Hon’ble High Court of Madras, to entertain and dispose

of the Appeal, we cannot confer jurisdiction on ourselves and deal with the matter on

merits.

For all the above reasons, we are of the considered opinion that the present Appeal is

not maintainable and the Appeal is liable to be dismissed in limini, on this ground

alone.

Accordingly, the Appeal shall stand dismissed. No cost.

(Dr. Devendra Kumar Agrawal) (Justice C V Ramulu) Expert Member Judicial Member