before the national green tribunal...

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.


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.


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


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.


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


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


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


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


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,


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


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.


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

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