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Graminee Environment Development Foundation, through its Chairman Mrs Geeta Wadhai, has filed this Application principally for the relief of restitution of land Gut Nos. 85,86,87,88 and 89 of village Nanavali, Taluka Shrivardhan, District Raigad upon removal of illegally dumped rocks, soil bauxite.
According to the Applicant, she is the owner of land bearing Gut Nos.75/B and 76 of village Nanavali, wherein she has her residence being house Nos. 166 and 88. Her property lies adjacent to the property of Respondent No.1 Balaji Infrastructure Ltd. The Applicant accuses Respondent No.1 of illegally dumping soil and rocks in the land adjacent to her property particularly, land Gut Nos. 85 to 89 in a bid to reclaim land and thereby causing damage to marine life and bio-diversity. The Applicant submits that, the damage caused to marine life and bio-diversity requires to be undone by restitution of the said land upon removal of dumped materials from the said land.
In response to the Notice before admission, Respondent No.1-Balalji Infrastructure Ltd filed reply dated 10th February, 2017 as well as additional affidavit dated 2nd May, 2017.
Respondents appeared through their respective counsel.
Learned Counsel appearing on behalf of Respondent No.1 opposes the Application on two (2) counts: (i) being hit by the principle of Res-judicata and (ii) limitation. He submits that the Applicant had raised a civil dispute before this Tribunal with an Application filed under Ss. 14,15,16 and 17 read with S.18 of the National Green Tribunal Act, 2010 in Application No.63 of 2014 (Pg. No.109 of the compilation) and the same was disposed off with the Judgment and Order dated 13th November, 2014 (Pg. 148-172 of the compilation). He added that the Applicant filed Regular Civil Suit No.4 of 2009 (pg.3 of the compilation) in respect of the property in question in the Court of Civil Judge, Junior Division, Shirvardhan and was dismissed vide order dated 2nd December, 2010, passed below Exh.1 in RCS No.9 of 2009 upon taking into consideration the order passed by the Hon'ble High Court of Bombay in PIL No.42 of 2009 vide Judgment dated 9th July, 2009. He submits that, the present Application is hit by limitation prescribed under Section 15(3) of the NGT Act, 2010, particularly, for the reason that cause of action for the Application firstly arose in the year 2008, when the alleged activity started and not upon receiving response to the RTI Application query in respect of the project as contended by the Applicant.
Learned Counsel appearing on behalf of Respondent No.1- Balaji Infrastructure Ltd holding Company of Dighi Port Ltd submitted that it has been incorporated for the purpose of developing Dighi Port in pursuance to Environment Clearance (EC) dated 30th September, 2005, granted to the project for construction of Dighi Port. He further submits that EC dated 30th September, 2005 permits the Project Proponent (PP) Dighi Port Ltd to utilize its area for storage, warehouses and deployment of handling equipment, and land in question used for dumping rocks and bauxite within Dighi Port area on rear side of the house of Applicant.
In order to set factual contents of the Application in order, the Applicant was allowed to amend the Application, and accordingly amended memo of the Application has been placed on record for our consideration.
Learned Counsel appearing on behalf of the Applicant placed before us the Panchnama dated 9th January, 2017 of the site inspection conducted by the Tehsildar, Shrivardhan recording the fact of dumping of rocks at the land in question.
Adverting to the grievances regarding restitution of environment, the controversy before us begs a question as to when 'first cause of action' arose for claiming the relief of restitution.
Section 15 (3) of the NGT Act, 2010 in clear terms requires the Application for restitution of the property damaged to be made within the period of five (5) years from the date on which cause for such relief first arose, and provides for discretion to the Tribunal to condone delay for 'sufficient cause' if the application is filed within further period of sixty (60) days and no further. In the present case, the Applicant avers that the cause of action first arose on 24.2.2015, when the letter was addressed by the Member Secretary, Maharashtra Coastal Zone Management Authority (MCZMA) to the Collector, Raigad to take action in respect of the grievance made by the Applicant and yet no action was taken by the authorities. The Applicant has further revealed in her Application that she has been making several complaints to the Authorities about the said grievance, first such complaint being made on 15.9.2014 to the Divisional Commissioner, Konkan Division, Navi Mumbai. Reading of the letter dated 24.2.2015, Annexure ''I to the Application (Pg.81) reveals the nature of grievance made by the Applicant. In short, the Applicant was aggrieved by the alleged illegal blasting work, storage of minerals and reclamation by Dighi Port Ltd. Similarly, the grievance made with complaint dated 15.9.2014 is regarding alleged illegal work of reclamation of seashore and filling rocks at village Nanavali and intertidal land encroachment without EC by Dighi Port Ltd, and Balaji Infrastructure Ltd.
In our considered opinion, making of grievance of the kind in the present case by writing a letter cannot be constituted as 'cause of action' but the actual act or its consequence constitutes 'cause of action' in any case. In the present case, cause of action has arisen as a result of blasting work as well as dumping of rocks etc. by Dighi Port Ltd and its holding Company Balaji Infrastructure Ltd in the said land.
A perusal of the Application gives some clue as to when such acts of blasting of hills and dumping of material excavated started. The Applicant has pleaded in her Application that Respondent No.1 encroached upon 3km of seashore of village Nanavali and without permission of any Govt. Authority dumped soil and rocks there. It is further pleaded that Respondent No.1 has been doing illegal activities of levelling, blasting, excavation of land, filling of land space with soil, dumping huge rocks and artificial land spaces without any permission; and in spite of such illegalities going on, Respondent Nos. 2 to 7- Govt. Authorities did nothing. The Applicant in her pleadings referred to EC granted in the name of Dighi Port Ltd on 30th September, 2005 for construction of Port at village Dighi, Taluka Shrivardhan, District Raigad and states that she does not challenge or dispute anything about such EC or any work at Dighi Port and her only grievance is that Respondent No.1 has encroached upon the property and extended various kinds of constructions beyond consented area. These facts as pleaded if read in conjunction with the plaint in Regular Civil Suit No.4 of 2009 filed by the Applicant in the Court of Civil Judge, Junior Division, Shrivardhan, do make sense as to when alleged activity had started. At para-7 of the said plaint, the Applicant has categorically stated that on 26.12.2008 the defendant (therein) i.e. Dighi Port Ltd came at the land adjacent to the house of the Applicant in order to make encroachment and reclaimed the land, and this highhanded activity of Dighi Port Ltd was resisted by the Applicant with objection that they cannot reclaim land by blasting the hills and dumping rocks at the said land. A clear fact emerges that the act of blasting the hill sides, dumping materials illegally and reclamation of land, first started in or about December, 2008. Thus, cause of action for the present Application clearly arose in or about December, 2008.
It is also not specifically mentioned in the Application as to what exact damage was caused as a result of dumping of rocks etc., giving rise to adverse impact on environment at the said Gut Nos. 85 to 89 of village Nanavali, and thereby to actionable grievance, particularly, when the EC dated 30th September, 2005 and corrigendum dated 26th December, 2005 (Pg.311) thereto permits Dighi Port Ltd to carry out reclamation within the area, which includes the said Gut Numbers - vide Notification dated 26th January, 2007 (Pg. 316 to 319) and the map (Pg.320) filed by Respondent No. 1 showing these survey numbers falling within the area of Dighi Port Ltd. The present Application filed on 30.7.2016, therefore, in our opinion, has been filed much beyond the period of limitation of five (5) years from the date on which 'first cause of action' arose as foresaid.
The Application is, therefore, squarely barred by limitation as prescribed under Section 15(3) of the NGT Act, 2010. The Application therefore fails. Hence, dismissed.
Original Application No.179 of 2016 stands disposed off accordingly.
M.A.No.171/2017 moved therein for interim stay no longer survives with disposal of the Main Application. Hence stands disposed off.