Trupti Shah And Ors vs Chairman And Ors

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 31 st October, 2013.

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.

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.

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.

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).

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.

This is not the case wherein the applications of the Applicants to get necessary information under the RTI Act were refused.

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.

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).

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.

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.

Miscellaneous Application No. 194/2015 is allowed and therefore, the Application No.32/2015 is dismissed. No costs.