before the national green tribunal...
TRANSCRIPT
J(Application No.32/2015 & M.A. No.194/2015) 1
BEFORE THE NATIONAL GREEN TRIBUNAL (WESTERN ZONE) BENCH, PUNE
APPLICATION NO.32/2015 (WZ)
And M.A. No.194/2015
CORAM:
Hon’ble Shri Justice V.R. Kingaonkar (Judicial Member)
Hon’ble Dr. Ajay A. Deshpande (Expert Member)
B E T W E E N:
1. Trupti Shah 37, Patrakar Colony, Tandalja Road,
Vadodara – 390 020. 2. Girish Patel, A/2, Shruti Apartment, 16, Alakapuri Society, Gulbai
Tekara, Ahmedabad – 380 015. 3. Krishnakant Chauhan 214, R.D. Complex,
Navagam – Dindoli Road, Udhna, Surat – 394 210.
4. Mahesh Pandya 502, Raj Avenue, Bhaikakanagar
Road, Thaltej, Ahmedabad – 380 059.
J(Application No.32/2015 & M.A. No.194/2015) 2
5. Ghanshyam Shah A 101, Saraunsh Apartment,
Kesariyaji Char Rasta, Jivaraj Hospital-Vasana Road, Vasana, Ahmedabad – 380 007.
6. S. Srinivasan, 1, Tejas Apartment 53, Haribhakti Colony, Old Padra
Road, Vadodara – 390 007. 7. Persis P. Ginwalla Ginwalla Bungalow, Behind Firdaus
Apartment, Khanpur Road, Ahmedabad – 380 001.
8. Rohit Prajapati 37, Patrakar Colony, Tandalja Road, Vadodara – 390 020 9. Saroop Dhruv 4, Lalitkunj Society, Part-1, Near Swastik Chaar Rasta,
Navrangpura, Ahmedabad – 380 009.
10. Rajni Dave 302, Sharan-1, Kesariaji Char Rast, Vasana, Ahmedabad – 380 007
……Applicants
A N D
1. The Chairman Sardar Vallabhbhai Patel Rashtriya
Ekta Turst (SVPRET), 1st Floor, Block No.12, New Sachivalaya Complex, Gandhinagar – 382 010.
2.The Chairman & Managing Director Sardar Sarovar Narmada Nigam Ltd.,
Block No.12, 1st Floor, New Sachivalaya Complex, Gandhinagar – 382 010.
J(Application No.32/2015 & M.A. No.194/2015) 3
3. The Chief Secretary Government of Gujarat 1st Block, 3rd Floor, Sachivalaya
Gandhinagar - 82 010. 4. The Member Secretary State Level Environment Impact
Assessment Authority Paryavaran Bhavan, Sector-10 A, Gandhinagar – 382 010, Gujarat. 5. The Secretary Ministry of Environment, Forests
and Climate Change Government of India, Indira Paryavaran Bhavan, Jog Bagh Road, New Delhi – 110 003.
6. The Chief Executive Officer &
Managing Director Larsen & Toubro Limited L & T House, Ballard Estate,
Mumbai – 400 001. …..Respondents
Counsel for Applicants : Shri Mihir Desai, Senior Advocate a/w Ms. Lara Jesani,
Advocate and Mr. Asim Sarode, Advocate
Counsel for Respondents : Mr. Tushar Mehta, ASG a/w Mr. Nirzar S. Desai,
Advocate for Respondent Nos.1 and 2
Mr. Viral Shah, Advocate for Respondent No.3
Mr. Maninder Singh, ASG a/w Mr. K.D. Ratnaparkhi,
Advocate for Respondent No.5
Mr. Rashesh Sanjanwala, Senior Advocate a/w. Mr.
Sandeep Singhi, Advocate & Mr. Parth H. Bhatt, Advocate
for Respondent No.6
J(Application No.32/2015 & M.A. No.194/2015) 4
Date: January 28th, 2016
ORAL JUDGMENT 1. The State of Gujarat envisaged a project to
build-up Statue of Unity, namely, of Shri Sardar
Vallabhbhai Patel who united various states in India. The
Statue is to be 182 meters tall and 3.2 kms away from a
man made Reservoir which the Applicants refer as Sardar
Sarovar Reservoir. The project also involves construction
of various amenities and facilities. For example, it
includes ‘Shreshtha Bharat Bhawan’ which is a Hotel and
Convention Centre is also being built over an area about
10 hectares in Kevadia Village. The Foundation Stone for
the project was laid by then Chief Minister of Gujarat on
31st October, 2013.
2. It is not necessary to give details of objections
raised by the Applicants to the project. As such in
substance, their objections are that the project is in the
proximity of Shoolpaneshwar Sanctuary and, therefore,
permission of National Board for Wild Life (NBWL) could
be necessary. There may be good intention of the State in
construction of the Statue but having huge size of the
Statue, the Applicants apprehend that it will be built in
more than 20,000sq.mtrs and therefore, its
environmental clearance was necessary as per Entry No.
J(Application No.32/2015 & M.A. No.194/2015) 5
8(a) of the Environment Impact Assessment (EIA)
Notification dated 14th September, 2006. They would
submit that State of Gujarat has not obtained
environmental clearance and thereby the impugned
project is open to challenge inasmuch as it suffers from
basic illegality. They submit that the Social Impact
Assessment has not been done nor report regarding EIA
impact was obtained from competent person before the
commencement of the project work in question and,
therefore, the illegality to the project is coloured inside
and outside which cannot be washed away. They alleged
that the impugned project is likely to cause adverse
impact on the riverbed, downstream river, activities of the
water bodies, livelihood of human beings and also the
biodiversity. On these premises, the Applicants challenge
the project in question.
3. In reply to the main Application, several
technical objections were raised including bar of
limitation and maintainability of the Application.
However, subsequently separate objection Petition (M.A.
No.194/2015) came to be filed separately reiterating the
same objections. The objections raised by contesting
Respondents mainly are that the main Application is
hopelessly barred by limitation under Section 14 of the
National Green Tribunal Act, 2010, in view of language of
J(Application No.32/2015 & M.A. No.194/2015) 6
Section 14 of the National Green Tribunal Act, 2010 and
it could not be maintained at all. They alleged further that
the main Application is liable to be dismissed for the
reason that cause of action is not disclosed and moreover
the Applicants, whatever have disclosed in the
Application, were completely aware of the facts which so-
called facts could not trigger any cause to give rise to the
present dispute. In other words, case of the Respondents
is that the alleged “cause of action” was already “non est”
and the Applicants have tried to pump some air in the
facts which could not trigger any dispute at all. The
contesting Respondents would submit that the Applicants
are not naïve person and immediately they had objected
to the work in question by sending e-mail and facts vide
communication dated 7th November, 2013 to a large
number of authorities including Chief Minister of Gujarat,
Chief Secretary, Government of Gujarat, so-on and so-
forth. It is contended that such a group of the Applicants
who could ventilate the grievance so quickly after the
declaration of the project work could not have, in any
manner, pushed the alleged cause of action under the
carpet for such a long time and has lost the opportunity
to file an application under Section 14 of the National
Green Tribunal Act, 2010 within the given timeframe. The
contesting Respondents, particularly MoEF and State of
J(Application No.32/2015 & M.A. No.194/2015) 7
Gujarat strongly urged therefore, to dismiss the
Application due to absence of bonafides as well as the fact
that the Application is outside the limitation. The absence
of bonafide is alleged on the ground that previously also
the Applicants had filed various applications which had
been dismissed and yet again and again the Applicants
are propelled to file such litigations, may be some
extraneous agency or by them without any substantial
reason.
4. Core issue is as to whether the Application is
within prescribed period of limitation. We have heard
learned ASGs Shri Tushar Mehta and Shri Maninder
Singh as well as other Advocates appearing on behalf of
contesting Respondents in extenso.
5. Learned Senior Advocate appearing on behalf of
the Applicants Shri Mihir Desai strenuously argued that
the cause of action cannot be looked at lopsidedly. He
would submit that mere communication dated 7th
November, 2013 by itself cannot be considered as the
point which trigger cause of action for the instant
Application. According to him, it was the date on which
the Applicants confirmed their suspicion that the massive
construction was likely to go beyond the so limit of
20,000sq.mtrs and material part of the construction such
as the bridge, the area covered by other facilities, etc. was
J(Application No.32/2015 & M.A. No.194/2015) 8
not indicated in terms of sq.fts on which had to be
calculated for the purpose of assessment. He would
submit that absence of any assessment as regards
question whether permission of NBWL was necessary or it
did not call for any requirement was not clarified and,
therefore, the day on which the Applicants got confirmed
about the illegality of the impugned work at the time of
the issuance of the Work Order i.e. 27th October, 2014,
the cause of action did occur to file the instant
Application (Application No.32/2015).
6. There cannot be two opinions about the fact
that “cause of action” comprises of bundles of facts. A
simple strand of such fact by itself will not be sufficient to
interpret the cause of action but it is also important to
see the cumulative effect of all the facts and
circumstances. In the instant case, the Applicants have
shown knowledge of the nature of the work, namely,
Statue of Unity and the magnitude of the work which is
awesome. They wanted to withdraw during the midst of
hearing of main Application, the Application subject to
certain conditions of which one condition was that the
design of Statue should be furnished to them. We rejected
their prayer on the ground that the conditions were of
onerous nature and suffer from illegality which the Court
cannot permit as precondition for withdrawal. The design
J(Application No.32/2015 & M.A. No.194/2015) 9
of the Statue is one thing which the Applicants most
probably are interested in knowing. It may be that the
contesting Respondents desire to protect the design for
the reason that the architectural patent rights or other
rights may be, which can seek due protection as
intellectual property, they do not wish to part with the
design of the Statue. Nobody will deny that immediately
the piracy, duplication of the work, or apprehended
violation of the intellectual property act may occur. Be
that as it is, those may not be the specific grounds raised
by the Respondents but one thing is clear that the
Respondents do not want to share such information with
the Applicants. At this juncture, the correspondence also
shows that at appropriate stage the information may be
available to the Applicants under the RTI Act.
7. This is not the case wherein the applications of
the Applicants to get necessary information under the RTI
Act were refused.
8. The Applicants filed this Application as on 23rd
March, 2015 was on basis of information gathered earlier.
Admittedly, laying of the foundation stone for the project
was on 31st October, 2013. This was within knowledge of
the Applicants. They wrote to Respondent No.4 on 7th
November, 2013 regarding their grievance about absence
of Environment Impact Assessment etc. Assuming,
J(Application No.32/2015 & M.A. No.194/2015) 10
therefore, the first cause of action arises on 7th November,
2013 then also the Application is barred by limitation
inasmuch as the period of six (06) months has gone might
beyond hands of clock. There is no provision to seek
extension of time and National Green Tribunal Act, 2010
being special enactment provisions of the Limitation Act
are not applicable. This is settled legal position. We need
not dilate on this legal position inasmuch as much case
law has mushroomed on this topic to which we do not
want to add anything further.
9. Faced with these difficulties, learned Senior
Advocate appearing on behalf of the Applicants Shri Mihir
Desai contended that the period of limitation in such a
case will commence from the date when “cause of action”
for such dispute would arise. He hammers on the words
“such dispute” which are used in Section 14 of the
National Green Tribunal Act, 2010. The learned Senior
Advocate appearing on behalf of the Applicants invited
out attention to the observations in Paragraph No.20 of
the Judgment in Amit Maru Vs. Secretary, MoEF (M.A.
No.65/2014 in Application No.13/2014).
10. We are of the opinion that it was a case of
violation noticed by the Applicant who had made
complaint to the concerned authority i.e. MCZMA and not
the case related to new construction activity which was
J(Application No.32/2015 & M.A. No.194/2015) 11
yet to begin. Both the cases stand on different footings.
The case of Amit Maru relates to Coastal Zone
Management Plan (CZMP). Apart from that it is learnt that
case of Amit Maru is under challenge before the Hon’ble
High Court and the view is not finalized because a bunch
of writ petitions for interpretation of the case of Amit
Maru is being heard by Hon’ble Division Bench, that is
what we are told in other cases. For this reason also we
do not deem it proper to rely to this observation for the
present. It may appear rather improper that we are not
taking aid from our own judgment but due to pendency of
bunch of writ petitions in which case of Amit Maru is
under scanner, we deem it proper to withhold our pen to
express any opinion about legal position.
11. Considering the fact situation in the instant
case, in our considered opinion, instant Application
No.32/2015 is barred by limitation and will have to be
dismissed. Still however, we make it clear that this
dismissal is not to be treated as precedent for other
purpose. All the questions related to the matter are kept
open for both the sides and may not be treated as
foreclosed for any purpose.
J(Application No.32/2015 & M.A. No.194/2015) 12
12. Miscellaneous Application No. 194/2015 is
allowed and therefore, the Application No.32/2015 is
dismissed. No costs.
….…………….………………., JM (Justice V. R. Kingaonkar)
…...….…….…………………….,EM (Dr. Ajay.A. Deshpande) Date : 28th January, 2016. mk