Mr. Surendra Waman Dhavale And Ors vs Secretary And Ors

The issue of limitation has been raised by the Respondent No.18 PNP Maritime Services Private Ltd. for questioning the maintainability of the present Application.

The Applicants have filed this Application on 6th September 2014 for the following reliefs :

(A) That since the impugned construction. is fundamentally illegal, hence the additional 4 jetties, godowns, office block, boundary walls etc which have been made in violation of the Environment Clearance accorded on 6th October, 2003 be ordered to be demolished.

(B) That all construction which has been done beyond the scope of Environment Clearance of 6th October, 2003, be dismantled completely and the land be restored to its original state.

(C) That the railway line which has been constructed without Environment Clearance be dismantled completely and the reclamation done in this respect be undone.

(D) That after the construction is removed, the entire place be planted with mangroves.

(E) That pursuant to Polluter-Pays Principle, the Project Proponent be asked to compensate for the damage to environment and that a heavy cost be imposed on the PNP and Dharamtar Infrastructure Pvt. Ltd. for having indulged in such enormous damage.

(F) That interim orders be issued by this Hon'ble Tribunal to halt the operations of the port, which causes immeasurable pollution of coal dust every day and that almost the entire port is fundamentally illegal.

(G) Any other order which this Hon'ble Tribunal may deem fit to pass considering the facts and circumstances of this case.

Essentially, therefore, the present Application moved by the local residents of village Pimpal Bhat, Shahbaj, and Ambepur (described as Ambe in the Application) respectively all of Tal. Alibaug, District Raigad is for restitution of the environment damaged by the construction of jetties in Dharamtar creek at village Shahbaj, Tal. Alibag, District Raigad. Section 15 of the National Green Tribunal Act, 2010 is quoted herein below for ready reference :

Section 15 of NGT Act : Relief, compensation and restitution. .

(1) The Tribunal may by an order provide.-

(a) Relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule 1 (including accident occurring while handling any hazardous substance),

(b) For restitution of property damaged;

(c) For restitution of the environment for such area or areas, as the Tribunal may think fit.

(2) - - - - - - - - -

(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose.

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

(4) - - - - - -

(5) - - - - - -

According to the Applicants, the 'cause of action' for the present Application arose when the facts concerning the transgression of laws were noticed and thereupon the notice dated 25th September 2013 was issued to Respondent No.17-Dharmtar Infrastructure Ltd. and Respondent No.18-PNP Maritime Services Pvt. Ltd. Learned counsel appearing on behalf of the Applicants submits that the issue of limitation is mixed question of law and the facts and it will have to be determined on case to case basis, and in the given facts and circumstances the cause of action for filing the present Application arose when the Applicant came to know about the illegal construction carried out by Respondent No.18 and the violation of the environmental clearance conditions.

Learned counsel appearing on behalf of Applicants quoted 'Discovery Rule' as endorsed by Hon'ble Supreme Court in Dr. V.N. Shrikhande's case reported in A.I.R .2011 SC 212: Dr. V.N. Shrikhande Vrs. Mrs. Anita Sena Fernandes. She submitted that the said Rule can be applied in cases of environmental damage.

Learned counsel appearing on behalf of Respondent No.18 conceded that the limitation is mixed question of law and facts. However, he submitted that the facts can be gathered from the material on record produced both by the Applicants as well as Respondents, including Respondent No.18 PNP Maritime Services Pvt. Ltd.. He therefore, invited our attention to the Google imagery produced by the Applicants at Annexure 'A-1 to A-8 and A-10 to the Application in compilation-II as well as photographs annexed to the affidavit dated 16th December 2015 of the Respondent No.18 at pages 646 to 657. He submitted that the environmental clearance was granted on 6th October 2003 and the construction of the jetties in question was commenced in February 2004 and almost completed in 2006, except the installation of tower-crane on one of the jetties, openly at a place visible and accessible to the public at large. He submitted that the facts could be ascertained from the Google imagery of the construction site which was also accessible to the Applicants at all times. He further submitted that the Applicants referred to several violations of Law, giving rise to separate causes of action for each of the violations both in the notice dated 25th September 2013 and the application and, therefore, clubbing of the causes of action, in the present Application amounts to misjoinder of causes of action in violation of Rule 14 of National Green Tribunal (Practice & Procedure) Rules 2011.

Countering these submissions, the learned counsel appearing on behalf of the Applicants submitted that the they are not seeking plural remedies but they are seeking a remedy of restitution of environment which can be achieved by demolition of the jetties in question though the cause of action for such relief arose as aforesaid She submits that the violations of law quoted in the Application cumulatively translated into environmental damage necessitating the relief of its restitution as prayed for and therefore, there is no violation of Rule 14 of National Green Tribunal (Practice & Procedure) Rule 2011.

Perusal of the notice dated 25th September 2013 reveals that the cause for present action before us is "massive construction", which in the words of the Applicant No.1 Surendra Waman Dhavale is as follows :

"4-A. That a massive construction of a port at Dharamtar Creek, alongwith large port-related ancillary constructions, such as warehousing, open-storage of coal, setting up of cranes, conveyors, rail siding etc. took place. This construction was done by committing several infractions of laws."

It is evident from the Google imagery photographs produced both by the Applicants and Respondent No.18 that the activity of the construction of the jetties was complete in the year 2005 and the destruction of mangroves was perceptible to the public at large from such Google imagery or otherwise. It is also seen from the Inspection Report, dated 1st February 2006 of the MoEF at Annexure A-11 to the Application that the construction of jetty was complete and only construction of storage sheds was going on. Construction activity evidently was not concealed and it was known to the public at large, particularly to the local residents, one of them being the Applicant No.2-Darshan Atmaram Juikar resident of Shahbaj.

In Dr. V.N. Shrikhande's case the Hon'ble Apex Court while dealing with the issue of Limitation in a case of medical negligence held :

"In case of Medical Negligence "Cause of action" does not accrue until the patient learns of injury/harm or in the exercise of reasonable care and diligence could have discovered the act constituting negligence".

In this case, the Hon'ble Apex Court made distinction between patent effect of negligence and the latent effect of negligence and proceeded to apply the 'Discovery Rule' evolved by the Court in United States in case of "Morgan Vrs. Grace Hospital Inc. 149W.Va.783, 144 S.E. 2d 156"

Here we are dealing with the case of patent event of massive construction perceptible to the public at large. Nothing was concealed as regards the construction in question. In such circumstance, the Ratio Decidendi arrived at in the case of Dr. V.N. Shrikhande is not applicable in the present case, more particularly for the reason that there was pre-existing jetty and nowhere the applicants have described or given the details of latent effects of harm/injury caused to the environment due to the construction in question which became patent in or about September 2013 the time when the notice dated 25th September 2013 was issued. It is the case of the Applicants that there has been massive cutting of mangroves in the year 2003 by Google imagery Communication 'A-8' for the purpose of construction of jetties. The first cause of action, therefore, in any case arose long back in the year 2003. Even by liberal estimation, the work of construction could be said to have been evident on its completion in the year 2006 vide Inspection Report dated 1st February 2006. In such situation, the Application which is filed on 6th September, 2014, in our view is grossly time barred.

Hence the O.A. No. 95/2014 stands dismissed with no order as to costs.