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Judgment
This Application got an access to the Tribunal under section 15 and 17 of the National Green Tribunal Act, 2010. The Applicant is a group of people born and brought up in the State of Goa and they have alleged that the construction activities of Respondent No.1 has caused illegal and unauthorized construction of huge environmental hazardous mega construction project, right in the 'No Development Zone' (herein after called NDZ) of National Highway-17. The Applicant states that Respondent No.1 could not have received Environment Clearance as it has encroached extensively upon the No Development Zone of the National Highway. The Applicant alleged that due to certain political and other vested interests, mandatory guidelines of maintaining 75m NDZ of National Highway with regards to the NH-17 have been diluted and deviated for the project area of Respondent No.1 from 75m to 40m by the Chief Engineer of the National Highways by Chief Engineer PWD by letter dated 10th May 2006. The Applicant has challenged the powers of Chief Engineer, Public Works Department (PWD) to issue such relaxation. Applicant alleges that the huge unauthorized project is indeed an environmental hazard as the same has partly been constructed in NDZ of NH-17. He further alleged that concerned department has stopped the project construction activity for 2-3 years. The Applicant states that because of the blocking and reducing the NDZ, certain environmental damages are caused which should be recovered from the Respondents. Such narrow width of the road, because of reduction of NDZ, has caused traffic congestion and has potential of causing accidents. On these grounds, Applicant contends that the Application is covered under section 15 of the NGT Act, 2010.
Initially, the case of the Applicant was that the project activity of Respondent No.1 does not have environmental clearance. However, consequently, when the Respondent No.1 produced the copy of the environment clearance on record, the Applicant sought leave to amend the Application. Such Application was granted. The Applicant in para No.17-c and 17-d has dealt this environmental clearance and alleged that such EC should not have been granted on various grounds, particularly suppression of the project information and further allege that the EC has been procured by committing a fraud by Respondent No.1.
The Applicant has, therefore, prayed for following:
a. The Hon'ble Tribunal be graciously pleased to order and direct the Respondent No.1 to cause immediate demolition/removal of all that part of the said mega project standing in the NDZ area and or within the road widening area of 75 mts. all along the stretch of NH-17 at Village Porvorim, Bardez Goa.
b. This Hon'ble Tribunal be graciously pleased to order and direct the Respondent Nos.2 to 5 to cause immediate removal of all that part of the said mega project of the Respondent No.1 standing in the NDZ area i.e. within the prohibited road widening area of the said NH 17 and free the entire NDZ stretch of NH-17 at village Porvorim, Bardez Taluka of Goa.
(b-2). If this Hon'ble Tribunal pleased not to quash and set aside the said EC dt. 5/9/2007 for whatsoever reason then in the alternative this Hon'ble Tribunal may be pleased to hold that the benefit of the said EC dt. 5/9/2007 do not extend to any part of the construction carried out by the Respondent No.1 in addition to and beyond the building plans taken into account by the appraisal committee and or the concerned committee of the MoEF for issuing the said EC dated 5/9/2007.
(b-3) This Hon'ble Tribunal be graciously pleased to quash and set aside the letter No.22/10/2008.09/PWD/WD.VII(NH)/ADM/628 dated 8/8/2008 and direct the Respondent No.8 the Ministry of Road Transport and Highways to cause immediate removal of all the part of the commercial complex and multiplex of the Respondent No.1 that stands erected within the prohibitory NDZ, Road Widening area of 75 mts. of NH-17.
(b-4) The Respondent No.1 be restrained by appropriate order from conveying and transferring any part of the offending commercial and multiplex by way of sale, lease, license, or creating any third party interest in such part of the said project in whatsoever manner.
(c) This Hon'ble Tribunal be graciously pleased to determine the appropriate amount of damages payable by the Respondent No.1 on account of causing direct damage to the NDZ area and prohibited road widening area of NH-17 and the same be directed to be paid by the said Respondent No.1 to the Respondent No.6 the State of Goa.
After admission, notices were issued and the parties have entered into the contest.
Respondent No.1 has filed Misc. Application NO.255/2015 raising preliminary objections to this Application with following prayer;
(a) The Original Application bearing No.137 of 2015 be dismissed by this Hon'ble Tribunal for want of jurisdiction and being barred by limitation.
Learned counsel for Respondent-1 contended that the Application is not maintainable on more than one ground. The main objection raised by the Respondent No.1 on maintainability of this Application, are summarized below :
a. There is no cause of action for the present Application as permissible under the National Green Tribunal Act. Respondent No.1 states that in para 9 and 23 of the Application, the Respondents have cited violation of NDZ of National Highway as the prime cause of action.
b. Learned counsel for Respondent No.1 submits that the issue related to restriction of activities along the national highway squarely falls under the National Highways Act which is not listed in the schedule appended to National Green Tribunal Act. Further he contends that the term "No Development Zone" that has been repeatedly used and argued by the Applicant is alien, even to the National Highways Act. He, therefore, contends that the reduction or restriction of regulated width of the National Highways cannot be construed as cause of action under the National Green Tribunal Act. c. He further alleged that the Applicants are challenging the decision of the competent authorities to restrict/modify such regulated width along the National Highway which was taken way back in the year 2006. He strongly argues that such a decision of competent authority, under the, provisions of National Highway Act and rules made there-under, cannot be challenged in any proceedings before the Tribunal.
d. Another contention of Respondent No.1 is related to limitation. It is contended that the Applicant have firstly challenged the decision of the competent authority to restrict the regulated width which was communicated by letter dated 10th May 2006 and the same is hopelessly barred by limitation. Similarly, the cause of action as indicated in para 23 clearly states that activities are going on since March 2011. This factual information given by the Applicant himself, would bar the present Application from limitation of time. Moreover, even going by the case of Applicant without prejudice, in the limitation clause of Application, it is contended that the cause of action has occurred in January 2015, without referring to any details thereof. The original Application has been filed on 27th October, 2016. Respondent No.1 alleges that in order to circumvent the limitation period of section 14 where the Tribunal has the wider original jurisdiction, the Applicant has deliberately portrayed the Application under Section 15 and 17 of the National Green Tribunal Act without substantially bringing on record the environmentally degradation or damages which can be construed as a triggering point for invoking Section 15 of National Green Tribunal Act. Learned counsel for Respondent submits that by mere quoting that there is environmental damage or degradation, the provision of Section 15 of NGT Act cannot be invoked, unless there is clear finding or decree or report by the competent authority or by the Court establishing the environmental degradation or damage that will enable the Applicant to invoke section 15 of NGT Act. He further contends that the Applicant is not the person who has suffered any damages as contemplated in section 15, and therefore, is not entitled to file this Application. He, therefore, argues that the Applicant has tried to mislead the Tribunal by quoting section 15 of NGT Act just to avail the enhanced period of limitation by five (5) years as against six (6) months, under Section 14 of NGT Act.
We have heard learned counsel for Applicant as well as Respondents in detail and gone through the pleadings.
We have noted that originally the Applicant claimed that there is no environmental clearance to the proposed project. When the EC was produced on record, the Applicant sought amendment to the Application. We have noted contains of the Application and we regret to note that in spite of the liberty given for amendment. The amendments are not carried out in several paras. Furthermore, the prayers as listed are very unique and interesting. Prayer (b-2) is a special to mention and re-produce again :
(b-2). If this Hon'ble Tribunal pleased not to quash and set aside the said EC dt. 5/9/2007 for whatsoever reason then in the alternative this Hon'ble Tribunal may be pleased to hold that the benefit of the said EC dt. 5th September, 2007 do not extend to any part of the construction carried out by the Respondent No.1 in addition to and beyond the building plans taken into account by the appraisal committee and or the concerned committee of the MoEF for issuing the said EC dated 5th September, 2007.
The Applicant has indirectly challenged the environment clearance dated 5th September 2007 through this proceeding. It is well settled legal principle that what cannot be done directly, cannot be done indirectly too. The challenge to the environment clearance in the guise of such conditional reliefs is not permissible by the Law.
The main contention of the Applicant is regarding violation of NDZ of National Highway 17 by Respondent-1. As far as the restriction on the national highway width, we are of the considered opinion that the issue falls within the domain of National Highways Act which is outside the purview and mandate of the National Green Tribunal. Therefore, the Applicant cannot raise an issue challenging and prohibiting the road widening area of National Highway No.17. The remedy lies somewhere else. We do not want to elaborate any further on this point.
The Applicant has pleaded that the cause of action is related to reduction of road width and also, restart of work in January 2015. We are of the opinion that the restriction in road widening width and permission granted for the construction in such area cannot be construed as a cause of action under National Green Tribunal Act. The term "cause of action" under National Green Tribunal Act is well described in judgment of Principal Bench of National Green Tribunal in Forward Foundation & Others Vrs. State of Karnataka and ors. (O.A.No.222 of 2014).
In summary, the cause of action as portrayed does not constitute the cause of action as envisaged under section 15 of the NGT Act, 2010. The Applicant has failed to demonstrate any environmental damage or degradation which entitle him to invoke the section 15 of NGT Act.
Based on the discussions above, we are inclined to accept the contentions raised by the counsel for Respondent No.1 regarding maintainability of this Application as the Application is bereft of the cause of action under the National Green Tribunal Act, 2010 and raises the issue outside the mandate and domain of National Green Tribunal Act. M.A.No.255/2015 is therefore, allowed. Consequently, the original Application No. 137 of 2015 stands dismissed.
We have taken a note that the Applicant is a group of people who are involved in environmental litigation. It is expected that such group of people should have been more conscious and aware about the legal framework which is required to file such Application. Considering this, we impose cost of Rs. 10,000/- (Rs. Ten thousand) on the Applicant which shall be paid to Respondent-1 within 4 weeks