National Green Tribunal
Udaysankar Samudrala vs Ministry Of Environment Forest And ... on 18 May, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
Original Application No.100/2020 (WZ)
(I.A. No. 138/2020, I.A. No. 42/2021 & I.A. No. 31/2022)
IN THE MATTER OF:
Udayasankar Samudrala
Office No. 2, Rewa Chambers,
31, New Marina Lines, Mumbai-400 020.
...Applicant(s)
Versus
1. Union of India
Through Secretary,
Ministry of Environment, Forest & Climate Change,
Indira Paryavaran Bhavan,
Jor Bagh Road, New Delhi-110003.
Ph.No.011-24695262, 24695265
Email: [email protected]
2. Member Secretary,
Infrastructure and Miscellaneous
Projects and CRZ Committee.
Ministry of Environment, Forest & Climate Change.
Government of India,
Indira Paryavaran Bhawan,
Jor Bag, Road, New Delhi-110003
Ph. No. 011-24695331
Email- [email protected]
3. The Deputy Conservator of Forest (Central),
Ministry of Environment, Forest and Climate Change
Regional Office, Western Region
Kendriya Paryavaran Bhavan
Link Road No. 3, E-5, Navi Shankar Road,
Bhopa1-462016, Madhya Pradesh
Phone- 0755-2465054, 2465496, 2466525
[email protected]
4. Shri Jivdani Devi Sansthan,
Formerly and/or variously known as
Jivdani Devi Temple Trust
Public Registration No. A/397(Thane)
Virar (East), District-Palgar, Maharashtra
Page 1 of 63
5. M/s Yashita Automotive Engineering Private Limited
A-501, Neelkantla Complex,
Sahar Road, Mumbai-400099
Email: [email protected]
6. Government of Maharashtra
through Chief Secretary,
CS Office Main Building,
Mantralaya, 6th Floor, Madame
Cama Road 4, Mumbai-400032.
Phone +91-22-22025042, 22028762
7. Maharashtra Forest Department
Government of Maharashtra
Through Principal Chief Conservator of Forests
3rd Floor Van Bhavan Ramgiri Road,
Civil Lines, Nagpur-440 001.
Phone: 0712 2550670
Email: [email protected]
8. Maharashtra Pollution Control Board
through its Member Secretary
Kalpataru Point, 3rd and 4th floor,
Opp. PVR Cinema, Sion Circle,
Mumbai-400 022
Phone: 022-24010437, 022-24020781.
...Respondent(s)
Counsel for the Applicant(s):
Applicant(s) : Mr. Matrugupta Mishra, Advocate
Counsel for the Respondent(s):
Respondent(s): Mr. Deepak M. Gupte, Advocate for R-1-MoEF
Mr. R.B. Mahabal, Advocate for R-4.
Ms. Manasi Joshi, Advocate for R-8
PRESENT:
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Reserved on: 27.04.2022
Pronounced on: 18.05.2022
JUDGMENT
1. This Application has been moved under Section 14 of the National Green Tribunal Act, 2010 by one Udayasankar Samudrala, with a prayer that Respondents be directed to ensure that no further construction work is done in Page 2 of 63 respect of Funicular Ropeway Project, it being illegal construction by Respondent No.4 (Jivdani Devi Sansathan) without prior Environment Clearance (EC), with prayer that Respondent Nos. 1 to 3 be directed to demolish and remove the said structure made by Respondent No.4 and restore the land to its original condition and further it is prayed that Respondent No.4 be directed pay penalty for destruction of ecology of forest land.
IN BRIEF, FACTS ARE AS FOLLOWS AS MENTIONED IN APPLICATION of APPLICANT DATED 15-12-2020
2. The Applicant is a law-abiding citizen and a practicing Advocate of Hon‟ble Bombay High Court who is deeply concerned about the environment and is also a devotee of Jivdani Mandir where he visits often which is located at hilltop point scenery and is surrounded by greenery and forest area and is an ideal place for peace and tranquility. He visited the temple on 18.11.2020 almost after about 5 years and was disturbed to see the new structure of the railway track right from the bottom of the hill to the top completely spoiling the greenery and serenity of the area. He made inquiries from local people and found that the said structure had been put for Funicular Ropeway System which was to start shortly, though the construction of the same had begun around three (3) years ago. He came to know that EC was granted to another Company on 17.09.2009 for Monocable Pulsated Ropeway Project, which had expired on 16.09.2014. Thereafter the Funicular Ropeway Project‟s contract was awarded to Respondent No.5- M/s Yashita Automobiles Engineering Pvt Ltd., which started construction in the year 2018 without obtaining EC. The Terms of Reference (ToR) in connection with the said proposal were in the form of a letter dated 25.09.2019 and Respondent No.4 applied for EC on 30.09.2019. The Applicant also found through few Newspaper reports published on 13.01.2020 that two workers had died while working on Funicular Ropeway Project and that through „Times of India dated 14.01.2020 he came to know that Jivdani Trust began the project 18 months ago. The Applicant felt disconcerted as to how the concerned Forest and Page 3 of 63 Environment Departments allowed such huge scale destruction of nature and forest land, therefore he made search on the Internet and came to know that the construction of the Funicular Ropeway project had been done without EC in blatant violations of Environmental Laws by Respondent No.4. On 21.11.2020 through „Mumbai-Mirror‟ dated 21st November 2020 he came to learn that Respondent No.4 had launched Funicular Ropeway service to ferry people to temple in Virar. Funicular Rail is a type of cable drawn railway for steep slopes, like hills and that trials or the service had already begun and the project was due to be launched by next month. The said project‟s contract was awarded to Respondent No.5 in January,2018, and that as on date of the starting of the project some time in the year 2018 and even as on date i.e. when the project is almost complete and close to the commencement of commercial operation, it does not have EC. EC was mandatory for such project, it being squarely covered under Item 7(g) of the Schedule of Environment Impact Assessment (EIA) Notification, 2006. Respondent No.4 had applied for EC on 30.09.2019 after substantial progress had been made in the Funicular Ropeway Project. The Applicant also obtained a copy of ToR in connection with the said proposal in the form of letter dated 25.09.2019 which had been submitted by Respondent No.4 to the Member Secretary, Expert Appraisal Committee (EAC), Infrastructure and Misc. Project, and CRZ, Ministry of Environment, Forest & Climate Change (MoEF&CC). It appears from the said proposal that reference had been made to prior EC granted to another Company on 07.09.2009. It was represented by Respondent No.4 that due to change in technology the work of ropeway had been stalled, but the Applicant learnt that Funicular Ropeway project was awarded to Respondent No.5. Thereafter the Applicant came across ToR of the earlier EC dated 17.09.2009 which had following material features;
(i) EC was granted for „Monocable Pusated Fixed Grip Passenger Railway‟ at Shri Jivdani Temple, which was for an Aerial Ropeway, which was required to follow the Page 4 of 63 standards of the ropeway system as per the Aerial Ropeway Act;
(ii) Environment Clearance contained that there shall not to be any change in the layout plan/master plan submitted to the authority without prior permission and that such approval has to be obtained before the commencement of construction work;
(iii) EC also denoted that its validity would be for a period of 5 years and as s u ch the same was due to expire on 16.09.2014.
(iv) The said project was forest land and h e n c e n e c e s s a r y forest clearance was required.
3. The proposal of ToR reveals that the Funicular Ropeway Project is a new project, date of the application being 25.09.2019, but such fact is false as it is an uncontested fact evident from the materials available in the public records that the said Funicular Ropeway construction work began in the year 2018. In fact on 25.09.2019 there was a representation made by Respondent No. 4 that Respondent No. 5 had been appointed as Technical Consultants for carrying out initial studies and for preparing a feasibility study for the project. But as a matter of fact, Respondent No. 5 was the contractor in charge of building the ropeway project from sometime in 2018. Respondent No. 4 had made a false and a concocted statement for procuring the EC at a belated stage. The Clause 1.5 of heading (ii) activity of Form-1, the proposal would reveal that the authority has been misled by Respondent No.4 through its misrepresentation that the construction would be made on a future date. The fact that the construction had already begun in the year 2018, was suppressed from the authorities, which amounts to committing fraud upon the authorities. There is a stark difference in the Funicular Ropeway project and Monocable Pulsated fixed grip Passenger Ropeway in terms of its land use and the environmental damage to be sustained. In the case of Mono cable Pulsated fixed grip Passenger Ropeway, the Page 5 of 63 requirement of land, (in this case a forest land) is minimal since only two pillars are to be constructed on the ground for the development of the terminal stations on both ends, while in Funicular Ropeway project, the entire project is built on land, as it involves laying down of rail track on the ground, therefore, land use and environmental damage is exponentially high in the case of Funicular Ropeway project. Respondent No.4 could have, in no way, gone ahead with the construction of a Funicular Ropeway project without EC or on the basis of EC granted in favour of another company on 17.09.2009 which too expired in the year 2014. From the Application of Respondent No. 4 before the State Expert Appraisal Committee (SEAC-1), it appears that there is a stark misrepresentation on behalf of the Respondent No. 4 as much as that they have stated that ‟existing project‟ had EC on 17.09.2009, which was an absolutely false statement aimed at misleading the authorities in as much as EC dated 17.09.2009 was not for the existing Funicular project, rather it was for a mono cable pulsated ropeway project which expired in 2014.
4. A meeting was held on 17-18th October, 2019, by Expert Appraisal Committee (Infra-2), from the bare perusal of minutes of which, it is evident that Respondent No.4 had started construction in July 2018, accordingly Respondent No.4 ought to have submitted a prior application for EC for Funicular Ropeway and ought to have obtained requisite permission before the start of the project. It is also evident from the material available on record that „Consent to Operate‟ or „Consent to Establish‟ had not been obtained by Respondent No.4 from the appropriate State Pollution Control Board, therefore, Respondent No.4 also acted contrary to the Environment (Protection) Act, 1986 and Environment Impact Assessment Notification, 2006, the provision of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974. All the construction work of the Funicular Ropeway System that had proceeded till date was illegal and the concerned authority ought to cause Page 6 of 63 removal of the construction to restore the land to its original condition. The Applicant also came to know through newspaper reports published on 13.01.2020 that two workers had died while working on the said project. As per the newspaper reporting in The Times of India dated 14th January, 2020 the Jivdani Trust began the project 18 months ago which would mean that the project began approximately in June/July, 2018, whereas EC was applied in September, 2019. Based on the above facts, the Applicant has raised the following substantial questions of law:
(i) Whether Respondent No. 4 could have initiated the construction of Funicular Ropeway System without obtaining a prior EC ?
(ii) Whether an expired EC in 2014 could be of any avail to the Respondent No. 4 for a new construction of a completely different project?
(iii) Whether Respondent No. 4 could have bypassed the Environment Impact Assessment (EIA) Notification, 2006 in abuse of its power and due process of law?
(iv) Whether the conduct of Respondent No.4 in applying for EC at a stage when substantial work had already been completed was legally tenable?
(v) Whether such non-disclosure of construction already made before application for EC amounts to material suppression?
(vi) Whether Respondent No.4 should be made liable for the restitution of the land to its original form as he has damaged the same without any authority of law?
5. Respondent No. 4 had also not obtained clearances such as the „Consent to Establish‟ or the „Consent to Operate‟ from the State Pollution Control Board. On 4th December, 2020 the Applicant came across a notice issued by the Maharashtra Pollution Control Board (MPCB) whereby it had scheduled a public hearing on 30th December, 2020 in compliance with Notification S.O. 1533 dated Page 7 of 63 14.09.2006 and amended Notification S.O.3067 (E) dated 01.12.2009 for grant of EC. Respondent No. 4 had misled the authorities into believing that the Ropeway project has not started yet whereas, in reality, the project was nearing completion. Public health, sustainable development, preservation of nature and ecosystem, forest and forestry, etc. have a status at par with the fundamental rights under Article 21 of the Constitution.
6. As regards satisfying the Tribunal on the point of delay, it is mentioned in the Application about the project, the Applicant learnt about the project in November, 2020 and took time to unearth the unlawful actions of the Respondent No. 4 and in the meantime, he came to know that a letter dated 04th December, 2020 was issued fixing the public hearing for grant of EC on 30th December, 2020.
By then the project was substantially completed, hence the Applicant did not have the opportunity to exhaust any remedy and hence has straight away brought such illegalities and violations before this Tribunal for the protection of the environment.
7. The cause of action arose on 21-01-2020, when the applicant came to know about the project through newspaper report as well as the illegalities committed therein through his own independent research and thereafter again on 04.12.2020, when he came across a notice of public hearing, hence application is well within time.
Reply affidavit of Respondent No. 1 dated 01.06.2021
8. On behalf of Respondent No.1 Mr. Suresh Kumar Adapa has filed reply affidavit stating therein that under the provision of the EIA Notification 2006, the construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule annexed to the said Notification entailing capacity addition with change in process and/or Page 8 of 63 technology shall be undertaken in any part of India, as applicable, only after receipt of the prior EC from the Central Government or as the case may be, from the State Environmental Assessment Authority (SEIAA). The EIA Notification, 2006, in paragraph-7, stipulates four (4) stages in the process of obtaining Environmental Clearance viz.
Stage (1) Screening, Stage (2) Scoping, Stage (3) public consultation and Stage (4) relates to the Appraisal of the project;
wherein the detailed scrutiny of the Application and other documents like the final EIA Report and outcome of public consultations including public hearing proceedings submitted by the Project Proponent (PP) is conducted by the EAC or the SEAC for grant of prior EC. The Tribunal had passed the order dated 24.12.2020 in the present OA directing the answering Respondents as under:
5. "We are of the opinion that the matter ought to be first looked into by the MoEF&CC and further appropriate action taken, in accordance with law within two months. In terms of the judgment of the Hon‟ble Supreme Court in Alembic Pharmaceuticals v. Rohit Prajapati (2020) SC Online 347, if requisite prior EC has not been taken and there is a violation of environmental norms, the project proponent may be liable to pay compensation for restoration of the environment or to cancel the project. An action taken report may be furnished to this Tribunal before the next date by e-
mail at [email protected]."
9. In compliance with the said order, MoEF&CC had examined the matter in detail and found that the instant project being a rope-way project falls under activity 7(g) of the Schedule of EIA Notification, 2006 under the category-A, due to the applicability of general conditions as the project reportedly lies at 4.4 km- E from Wildlife Sanctuary (Tungareshwar Wildlife Sanctuary) notified under the Wildlife Protection Act, 1972 and 2.5. from the ESZ of Tungareshwar Wildlife Page 9 of 63 Sanctuary notified on dated 11th September, 2O19. S.O.3250 (E). The PP i.e. Jivdani Passenger Funicular Ropeway at Virar, Maharashtra through M/s Shri Jivdani Devi Sansthan had applied for ToR with the MoEF&CC vide proposal dated 30.09.2019 for implementation and operation of Jivdani Passenger Funicular Ropeway at Shri Jivdani Devi Temple, in order to promote tourism and model shift to transit and reduction in traffic congestion in the region. The Expert Appraisal Committee, (EAC) (infrastructure-2) in its 45thEAC meeting held on 17th-18th October, 2019 appraised the project and recommended ToR for preparation of EIA/EMP report as per the provisions of EIA Notification, 2006. At the recommendation of EAC the answering Respondent was granted ToR on 03.12.2019. As per the submission made by the PP, during the process of ToR, Jivdani Passenger Funicular Ropeway through M/s Shri Jivdani Devi Sansthan was initially granted EC on 17.09.2009 by Maharashtra SEIAA for development of Ropeway based on Monocable pulsated fixed grip passenger ropeway. Thereafter, the construction work had started but due to change in technology of ropeway, the work had been stopped at the site. The Project Proponent then applied at State Environment Assessment Committee (SEAC) (Maharashtra) for modernization of the ropeway project which was deferred in 150th SEAC meeting dated 04th May 2018. The alignment of the project falls within a Forest land which has been diverted for the development of Terminal Stations and line Towers covering an area of 1.95 ha. As per one of the specific conditions in the ToR, the PP had to submit Certified Compliance Report issued by the MoEF&CC, Regional Office or concerned Regional Office of the Central Pollution Control Board (CPCB) or the Member Secretary of the respective State Pollution Control Board/State PCB for the conditions stipulated in the earlier environment clearance issued to the project along with an Action Taken Report (ATR) on issues which have been stated to have been partially complied or not complied. 'ToR' along with Public Hearing prescribed by the EAC (infrastructure- Page 10 of 63
2) should be considered by PP for the preparation of EIA/ EMP report for the above-mentioned project in addition to all the relevant information as per the 'Generic Structure of EIA' given in Appendix III and III-A in the EIA Notification, 2006. The draft EIA/EMP report shall be submitted to the State Pollution Control Board (PCB) for public hearing. The issues emerged and the response to the issues shall be incorporated in the EIA report. The prescribed ToR would be valid for four (4) years for submission of the EIA/EMP Reports. It is further submitted that the final EIA report, so prepared, shall be submitted by the Applicant to the concerned Regulatory Authority on PARIVESH (website) for appraisal. Appraisal means the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee, of the Application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the Applicant to the Regulatory Authority concerned for grant of EC. As per information available on PARIVESH, no proposal from PP for grant of Environment Clearance has been submitted so far. It is humbly submitted that in compliance of the direction of this Tribunal vide order dated 24.12.2020, cited above the MoEF&CC directed its Regional Office to inspect the site and submit a report within one month and also to submit a certified compliance report as per requirement of ToR dated 03rd December 2019.
Reply affidavit of Respondent No. 4 dated 04.10.2021
10. Respondent No. 4, „Shree Jivdani Devi Mandir Trust, Virar‟ has in its reply affidavit stated that all the allegations are false against the answering Respondent. Respondent No.4 is a registered Public Trust which at first thought to have a Funicular System in the year 2004 and invited Tenders wherein Damodar Ropeway & Infra Ltd. (DRIL) was awarded contract, but subsequently due to insistence of the DRIL, since they were unable to carry out work of funicular system, the project was changed from to funicular to aerial ropeway in Page 11 of 63 the year 2007. This facility was falling under 7(g) of the Schedule of EIA Notification dated 14.09.2006. Therefore, EC was obtained by DRIL for „Aerial Ropeway‟ on 17.09.2009. The contract was awarded to DRIL in the year 2007. When no progress was made for about 10 years, the contract awarded to it was cancelled in the year 2017, where after, the DRIL went into commercial arbitration on financial issues, claiming loss of Rs. 17 Crore and the counterclaim of Rs. 72 Crore was lodged by the Trust but an effective hearing of the case has not taken place. The Applicant is a proxy of DRIL which was commercially hurt as it‟s tender was cancelled due to non-performance and inordinate delay. The DRIL thereafter decided to harass Respondent No.4 in every possible manner, though the litigation has nothing to do with the environment. The Principal Bench of this Tribunal had already decided Original Application No. 55/2020 (WZ) (along with I.A. Nos. 75/2020, 76/2020 and 77/2020) by a common order dated 09.09.2020, but DRIL has not filed any Appeal against it and therefore said order has reached finality. The Applicant has failed to mention as to from where he has obtained these documents as they were with DRIL and there is no stamp of obtaining the same under RTI. The Applicant visited the Trust after the Application of DRIL was dismissed and not before that. The Applicant has filed the present Application on 16.12.2020 but did not attend the Public Hearing on 30.12.2020 nor did he oppose to the project or raise any of these contentions during the public hearing nor did he send submission of objections by post to Collector or MPCB. The Public Hearing was conducted at the site on Wednesday 30.12.2020 in which 22 persons spoke who all were supportive of the project including Mr. Suneel Bajaj who is an employee of DRIL because the project was found beneficial to all. The said Public Hearing was conducted in the backdrop of Covid-19. DRIL filed many litigations at various levels in order to harass and extort Rs.17 Crores in arbitration, for the contract it had lost. There are two basic different types of ropeway systems; (1) Page 12 of 63 „Aerial Ropeway‟, where cabins are suspended on aerial ropes, and (2) Funicular System, where the carriages are carried over rails which are supported by the ground. The latter system was found to be more advantageous in the alignment of Jivdani, hence was adopted by the Trust with the revival of the project. As the Funicular System project commenced in 2008 and started at Saptashrungi, District Nashik in year 2018, the Trust could study the system carefully. After deciding upon the change in the system, the Trust immediately informed the Forest Department of its intent. The order for "Diversion of Forest Land"
mentions just „Ropeway‟ and not „Aerial Ropeway‟. The Forest Department has not put any conditions of the type of Ropeway to be installed by the Trust. Hence the Trust was well within its rights to change the Ropeway System and informed accordingly to the Forest Department by way of abundant precaution.
"Ropeways" are a State Subject and listed in List-II of Article 246 of the Indian Constitution. Hence, the legality of any ropeway in the State of Maharashtra is decided by the Government of Maharashtra. Whether „Funicular System‟ is an „Aerial Ropeway‟ under the law in Maharashtra, is decided by the appropriate Authority for enacting the Bombay Aerial Ropeway Act, 1955 (to be referred as Act of 1955) in Maharashtra, which is the Ropeway Advisory Committee of PWD, Maharashtra Government. It is not clear to the Trust as to whether "Funicular Systems" were "Aerial Ropeways" covered by the Bombay Aerial Ropeway Act, 1955, hence by way of abundant precaution and to avoid any violation of laws, the Trust, applied for permission under the said Act before the appropriate authority - "Ropeway Advisory Committee" of PWD Maharashtra State, and simultaneously applied for an EC which is mandatory for "Aerial Ropeways" as per EIA Notification, 2006. Funicular System at Saptashrungi is a project of PWD Maharashtra Government. They did not apply for Ropeway permission under Bombay Aerial Ropeway Act, 1955. They did not apply for any EC under EIA Notification. The project is commissioned by the Government about three (3) Page 13 of 63 years ago and is fully operative. The "Ropeway Advisory Committee" of PWD Maharashtra State vide letter dated 30.11.2019, formally replied the trust that "Funicular System" is not considered by them as an "Aerial Ropeway" under the governing Act of 1955 for Aerial Ropeways in Maharashtra. This removes all doubts in Maharashtra with regard to "Funicular System" not being "Aerial Ropeway", and as a corollary, law specifically relating to "Aerial Ropeways" do not apply to "Funicular Systems". The clarification by PWD and NOC by all other departments has been enclosed. The EC clearance at Sr. No. 7(g) is specific to "Aerial Ropeways" and not all types of Ropeways. Hence, it does not apply in the State of Maharashtra to Funicular Systems. When the project was changed to the ground route altogether which is called Funicular System, which is called trolley pulled on ground by rope, it was no more „Aerial Ropeway‟. Similar systems are already there in Maharashtra and in other parts of India. One such YouTube video, for better visualization is available on the link (https://youtu.be/ws0nEXzIwBo) of (Funicular System by Govt. of Maharashtra at Saptashrungi Gadh, Nashik, India of Year 2018). Such projects are not covered in the EIA Notification and hence do not need any EC. Further it is submitted that the project is to connect the approach point to the Shree Jivdani Trust which is about 400 mtr away and at elevation of 180 mtr. If one has to walk through stairs, one would have to take existing alternative or about 1400 steps of 6 inches each. About 8,00,000 devotees visit each year to the said Trust which consists of 2,40,000 senior citizens, handicapped, ladies and kids below 5 years who find it difficult to reach the Temple. Therefore, Public Trust spent about Rs. 32 Crores of its money and partly borrowed money from the Bank, with due permission of the Charity Commissioner. The project is providing free facilities to the handicapped and an assistance to senior citizens and kids of age below 5 years. With respect requirement of EC, it is submitted by Respondent No.4 that the initial project was of aerial ropeway which was squarely covered by Page 14 of 63 EIA Notification, 2006 falling under Sr. No.7 Physical Infrastructure including Environmental Services- "7(g) Aerial Ropeway". As such Trust asked the then contractor DRIL to obtain EC, in pursuance of it the DRIL applied and obtained the EC, but never executed the project as per the contract. In the meantime, the earlier EC obtained got lapsed in 2014. Subsequently, instead of „Aerial Ropeway‟, the proposed project/activity changed to Funicular System which is not an aerial ropeway anymore as the same was going to be a ground-based rail-
track-based trolley system. Even after going through the entire EIA Notification, this project was not found to be covered by the Notification and hence the same was not regulated by the Notification. It is also necessary for each project/activity to somehow accommodate to fit in the nearest category unless it is specifically covered. The EIA Notification is regulatory in nature only for the projects and activities covered and not prohibitive in nature. Total Forest land of 19.500mtr (1.95 Ha) had already been allotted and diverted by the Forest Department for the purpose of construction and allied activities including ropeway (aerial or funicular was not the matter in the approval). The Trust in exchange of the present land had provided 1.95 ha of land at Wasale, Taluka Shahapur, District Thane. The compensation cost was paid and afforestation was done. The change in the project and initiation of work was also informed to Forest Department on 15.11.2017. The Trust had planted so far more than 2,00,000 trees in the said area and has already spent more than Rs.30 lakhs on the plantation and has given Rs.5 lakhs each year for plantation in the area without any directives of the Court or Tribunal. The land utilized by the Trust for this Funicular System was fallow land without much of vegetation. The Forest Department gave the permission to divert and allotted this land against the compensatory afforestation which is already done.
11. As regards the cause of action the Applicant has mentioned that the present Application has been filed on 16.12.2020, which is 1036 days after the Page 15 of 63 work started at the site on 12.02.2018 and the project has now become fully operational on 04.02.2021, after Occupancy Certificate (OC) by Vasai Virar City Municipal Corporation (VVCMC). The date of the visit of the Applicant to the site on 18.11.2020 cannot be the cause of action. If he was an intimate devotee who visits every 5 years and would have visited after ten (10) years, then it does not shift the date of cause of action giving rise to „substantial question relating to environment‟ and/or any such dispute from that cause. As per Section 14 (3) of the NGT Act 2010, the limitation prescribed is of six (6) months from the date on which the cause of action for such dispute first arose, while the Respondent states that issue raised in the application first arose in 2017. All issues at site, progress of work etc. were all known to the Applicant, therefore he ought to have filed the Application within six months from the day such cause first arose. The Applicant ought to have justified the delay if any, as to how he was prevented from filing the Application in time which is not done by him, and that the Tribunal does not have the power to condone the delay beyond sixty (60) days. Therefore, the present Application needs to be dismissed on this ground alone.
12. Apart from this, it is stated that since the same and similar issue has already been dealt with by the Tribunal and the final order has been passed on 09.09.2020, repeated adjudication cannot be done before the same forum on the same issue.
13. Further it is submitted that there are many vague allegations and no specific cause of action has been mentioned in the Application giving rise to this dispute. The Applicant has not given any data of his own, which prima facie would show violation vis-à-vis the condition of EC. The Applicant is duty-bound to show the direct violation of a specific statutory environmental obligation, by which the community at large is affected or the gravity of damage to the environment or property is substantial or damage to public health is broadly measurable or the alleged environmental consequences should relate to a Page 16 of 63 specific activity or a point source. All this has not been done, none of the allegations made in the Application constitute a „substantial question related to the environment‟ under Section 2(m) of the NGT Act.
14. Further it is submitted that the Applicant has stated many allegations, each of such causes has to qualify as a „substantial question related to the environment‟, to be within the jurisdiction of this Tribunal. All these plural causes are independent of each other, and hence cannot be clubbed in one single Application. The reliefs sought in the present Application are absolutely non-consequential and not related to that one single cause of action which can be adjudicated in the legal scope of the Application.
15. With regard to locus standi, it is submitted by answering Respondent that the Applicant is not having any locus standi under Section 14 of the National Green Tribunal Act 2010, for seeking any kind of relief, compensation, restitution as he is not an aggrieved party and hence he is not entitled to file Application under Section 15 read with Section 18 of the Act. If he visits often and has visited the Trust after 5 years on 18.11.2020, his frequency of visits to the Trust would make his locus standi as a devotee under strong challenge apart from as an environmentalist. The Applicant is residing 100km away from the Trust, hence he is in no way eligible for any relief or compensation. The Applicant has not filled up Form -II under Rule 8(1)which is mandatorily required to be submitted by giving particulars of reliefs and compensation claimed, on which he has to pay percentage fees towards such Application.
16. Further, it is submitted that no specific points are shown by the Applicant regarding violation of any of the Acts in Schedule or violation of provisions of the EIA Notification 2006, rather has vaguely referred to newspaper articles.
Page 17 of 63
17. It is further submitted by Respondent No. 4 that earlier EC of Damodar Ropeway & Infra India Ltd in 2009 has lapsed in the year 2014, but it is further impressed that the said project which was requiring EC did not come up.
18. Further it is submitted that Funicular System does not require EC as the same is not covered by EIA Notification 2006 as the project is not in ecologically sensitive area and a letter to that effect has been issued by the office of Chief Conservator and Director, Sanjay Gandhi National Park, Mumbai on 09.09.2019, this has also been clarified by MoEF&CC and MPCB by letter dated 04.10.2022.
19. Further it is submitted by answering Respondent No. 4 that the nature of project substantially changed from aerial ropeway to track-based trolley type Funicular System, therefore, it was clear on the advice of brilliant minds and environmental consultants that the said project/activity is no longer covered by the EIA Notification 2006. The railway projects, and metro projects are also not covered by the EIA Notification 2006. The use of the term „aerial ropeway‟ in EIA Notification was not leaving any confusion that the proposed project is no more an aerial ropeway project. This is due to confusion and inappropriate crisscross advice by people working in this field and to some extent being over cautious as Trust is dealing with public money that when the Trust was advised that it should apply and inform the respective Authority during the Screening & Scoping itself, to de-list this project from being the tenable project falling under the jurisdiction of the Appraisal Committee (SEAC or SEIAA). The Respondent No. 4 was further told that SEAC / SEIAA would not have jurisdiction, to entertain the application and authority to grant the EC, unless the project is falling under EIA Notification 2006 as on date of application. Even if there is future amendment, it would not apply retrospectively even if project proponent is volunteering to seek and obtain EC, though it was not covered under the EIA Notification. Such volunteering would not create the required jurisdiction for the Page 18 of 63 SEAC/SEIAA. The authority, power, jurisdiction are to be created only by the enabling statute which is the EIA Notification 2006 in this case. The consultants also advised as to how the SEAC/SEIAA refused to entertain the Construction Projects that are below 20000 sq. mtrs. under 8(a) when they have no such power. Mislead by these cross advices, Trust applied for the EC. Respondent No. 4 now intended to withdraw it, by mentioning these peculiarities of the current project. The Trust/answering Respondent was very sure that EC would not be required as the project is no more aerial and is a simple mechanical facility, moving on ground, on rail tracks, where funiculars are pulled by counter- balancing the cubical by rope. The answering Respondent had also simultaneously written to MoEF&CC and MPCB explaining all above and to consider and decide all these issues in the light of the existing provisions of the Notifications.
20. With respect to „Consent to Establish‟ from MPCB answering Respondent states that project has been granted the „Consent to Establish‟ from MPCB for Funicular System project and not the Aerial Ropeway project. The „Consent to Establish‟ was also applied merely by way of abundant precaution because EC was required for „Aerial Ropeway‟. There is no category whatsoever in CPCB & MPCB‟s categorization of Industries. Further a temple is not an industry, operation or process, as such, neither „Consent to Establish‟ nor „Consent to Operate‟ would be required for the Temple. Further it is submitted by answering Respondent that pursuant to complaint and the litigation Regional Office of MoEF&CC carried out the site inspection on 30.07.2021 and the visit report of the same is uploaded on NGT website. Original Application is not for conservation of the environment rather the same has been filed purely for commercial gain and vendetta, and for securing the commercial arbitration award of exorbitant amount. Further answering Respondent says that the Forest Department has granted the permission for diversion of land for non- Page 19 of 63 forest purposes by mentioning the changed land use as ropeway. Even the Trust informed the Forest Department about the change of nature of the project to be now Funicular System vide letter dated 15.11.2017. The work at the site of construction, reception and commissioning is complete, incurring expenditure of Rs.32 Crores and MPCB and MoEF&CC Officials have already visited the site and have noted the said facts. Further it is submitted that as on date there is no violation of any of the provision of the Acts, Rules or Gazette Notification in erection of „Funicular System‟. This project and activity is not there in the EIA Notification. Even if by future amendment it is included, it would remain prospective in nature and cannot be made applicable to the old projects that have been completed. Further it is submitted that since the project is already complete, therefore the operational status-quo should be vacated so that all devotees which include handicapped, senior citizens, ladies, and children below 5 years, can avail of the benefit of this facility. Further it is submitted that balance of convenience lies in favour of the answering Respondent because the project is operationally ready and can serve about 8Lakh devotees and in particular those 2,40,000 persons who are handicapped, senior citizens, ladies and kids below 5 years.
Reply affidavit dated 13.12.2021 on behalf of Respondent No. 8 - MPCB
21. It is submitted by Respondent No. 8 that earlier the State Environment Impact Assessment Authority (SEIAA), Environment Department, Government of Maharashtra had granted Environmental Clearance dated 17/09/2009 to M/s. Damodar Ropeways and Construction Co(Pvt.) Ltd. for Jivdani Mata Temple Ropeway Project of Shri Jivdani Temple Trust subject to certain terms & conditions. The Expert Appraisal Committee (Infra-2) in its 45th Meeting held on 17-18th October, 2019 stated that due to change in technology of ropeway, the work had been stopped at the site. The Project Proponent had applied the State Expert Appraisal Committee (SEAC), Maharashtra for modernization of the Page 20 of 63 ropeway project. The Aerial Ropeways Activity was covered under the Category-B of Item 7(g) of the Schedule of EIA Notification, 2006 and it required appraisal of State Environment Impact Assessment Authority (SEIAA)/ State Expert Appraisal Committee (SEAC). However, due to applicability of general conditions of EIA Notification, 2006, the said project which falls at 4.6 kms. from Eco- Sensitive Zone (ESZ) of notified Tungareshwar Wild Life Sanctuary, was treated as Category-„A‟ and required Environmental Clearance from Ministry of Environment, Forest and Climate Change (MoEF&CC), Government of India. The Ministry of Environment, Forest and Climate Change (MoEF&CC), Government of India accorded Terms of Reference (ToR) of the project for Environmental Impact Assessment(EIA)/ Environmental Management Plan (EMP) studies for the constructions of Funicular Ropeway at Virar by Respondent No. 4 vide letter dated 03/12/2019 which was considered by the Expert Appraisal Committee (Infra-2) in its 45th Meeting held on 17-18th October, 2019, subject to the condition of public hearing on issues raised and commitments made by the Project Proponent. Accordingly, public hearing was conducted on 30/12/2020 under the chairmanship of District Magistrate, Palghar and the Minutes of the Meeting were forwarded to Ministry of Environment, Forest and Climate Change (MoEF&CC) on 22/01/2021. A copy of the letter dated 22/1/2021 along with Minutes is annexed as Annexure-A. Respondent-Board granted the Consent to Establish on 08/07/2020 for construction and installation of Passenger Funicular Ropeway System Project in Red Category having Plot Area 19500 sq. mtrs. for number of terminals-2, subject to certain terms and conditions, out of which, one of the conditions is that Project Proponent shall not take any effective steps prior to obtaining Environmental Clearance. A copy of the Consent to Establish is annexed as Annexure-B. The Project Proponent has taken trial run of funicular ropeway project without obtaining prior Environmental Clearance Page 21 of 63 and Consent to Operate, therefore, the answering Respondent is in the process to assess the environmental compensation.
Rejoinder on behalf of Applicant to the Reply affidavit filed on behalf of the Respondent No. 1 dated 05.07.2021
22. It is submitted that this Tribunal had ordered on 24.12.2020 directing the Respondent No.1 to look into the matter and submit report before 17.03.2021, as to whether any violation was found, if yes, the action taken report was required to be submitted by 24.02.2021. In compliance with the said order, a belated report was submitted and that too without taking any action in the matter.
23. Shri Suresh Kumar Adapa who has filed affidavit on behalf of the Respondent No. 1, has not provided any authorization to represent Respondent No.1 and action taken report has been submitted by Respondent No. 1 before the Tribunal. It is denied that Respondent No. 4. was granted any Environmental Clearance on 17.09.2009 or that the construction work had started or that due to change in technology, such work was stopped at the site. In fact, Environmental Clearance was granted on 17.09.2009, was for a Mono Cable Pulsated Fixed Grip Passenger Ropeway to the erstwhile contractor M/s. Damodar Ropeway & Infra Limited (DRIL) for a period of 5 years only which stood expire by efflux of time on 16.09.2014. The entire work pertaining to the Funicular Ropeway has been carried out by Respondent No. 4 without Environmental Clearance. No work had been done during the tenure of the first Environmental Clearance dated 17.09.2009 at the funicular ropeway site which is evident from the balance sheets of Respondent No. 4 for the year 2017-2018, 2018-2019 and 2019-2020. In the balance sheet of the year 2017-2018, the balance against Funicular Ropeway (WIP) has been shown as Nil till 01.10.2017. The entire work under the said project ensued only in the financial year 2017-18 and was carried on in the years 2018-19 and 2019-20. Between 01.10.2017 to Page 22 of 63 31.03.2020, a sum of Rs. 21,90,87,177/- was spent by the Respondent No. 4 in the construction of the funicular ropeway project. Although till date, there was no Environmental Clearance granted. The said balance sheets have been annexed. No certificate regarding compliance report was ever issued by Respondent No. 1 nor could this have been issued in light of the fact that the earlier Environmental Clearance dated 17.09.2009 stood determined on 16.09.2014. Moreover, the contract of the project for a different kind of ropeway was given to separate contractor. The present funicular ropeway at the project site is fundamentally different from the construction which was envisaged under the Environmental Clearance dated 17.09.2009 which would have minimum effects on Flora and Fauna of the forest land, where the project is situated, but the present project runs on rail tracks laid on ground of the forest land requiring substantial construction which would adversely affect the Flora and Fauna, which could, in no way, have been initiated without valid Environmental Clearance. The public hearing which took place on 30.12.2020 at the project site was chaired by the officials of the Respondent authorities as well as officials of the Maharashtra Pollution Control Board (MPCB). The manner in which the said public hearing was done, is shady. When the officials attended the project site to host the public hearing, they witnessed that the entire ropeway project on rail tracks had already been put in place, however, no notice was made about this fact. The public hearing is supposed to be conducted prior to the initiation of any kind of construction for obtaining prior Environmental Clearance. The EIA Notification, 2006 does not envisage a post construction Environmental Clearance. Therefore, not only the Respondents but also all the officials who conducted the public hearing made a mockery of Environmental laws which leads the Applicant to believe that the same was a concocted one. Minutes of the said Meeting dated 30.12.2020 has been annexed. The averments in paragraph 14 of the affidavit of Respondent No. 1 that no proposal from Project Proponent Page 23 of 63 (PP) for grant of Environmental Clearance had been submitted till then, is contrary to the record because the Project Proponent had submitted application for Environmental Clearance on 01.03.2021, copy is annexed as Annexure "C" which was listed on PARIVESH. A Member Secretary of the Infrastructure of miscellaneous project & CRZ submitted a query on 04.04.2021 which is annexed in the form of screen shot of the same, which was to the effect that "a) please specify the status of stage 1 of the forest clearance; b) as per NGT order, the construction of facility amounts to violation, therefore, please specify the status of physical progress of the facility since 2009". The said queries were not answered by the project proponent for over a month, hence the application for Environmental Clearance got delisted from PARIVESH on 05.05.2021. A copy of relevant extract is annexed as Annexure "E". It is denied that in compliance with the direction of Tribunal dated 24.12.2020, the Respondent had directed its Regional Office to inspect the site and submit a report. Rather the Tribunal had directed the Respondent No. 1 to look into the matter and take action, if any violation was found and to submit such report before it on 17.03.2021. The said compliance was to be done by 24.02.2021 but the Respondent No. 1 directed Regional Office to carry out a site inspection and submit a factual report on 28.05.2021, i.e., after 5 months from the date of order. In this manner, the Respondent No. 1 mocked the direction of the Tribunal and placed incorrect facts on record to mislead the Tribunal. It is disappointing that since December- January, 2020, the Project Proponent has been commercially operating the ropeway project under the garb of „trial runs‟ and the authorities including the Respondent No. 1 have turned a blind eye to the illegalities carried out by the Respondent No. 4 without any explanation. It appears that such behaviour of the Respondent No. 4 is owing to a joint conspiracy between the Project Proponent and the Respondent No. 1. A copy of the ropeway ticket issued by the Respondent No. 4 is annexed as Annexure "G" which are issued in the form of a Page 24 of 63 donation slip. Since the Respondent No. 4 is well aware that unless the Environmental Clearance is obtained, it could not start commercial operations. A photograph of the site showing that the project has been completed and is commercially operational under the garb of „trial runs‟ is annexed as Annexure "H". YouTube video link "https://youtu.be/idNwNOHMjB0" is also mentioned showing the funicular ropeway to be operational at Jivdani along with the ticket mechanism. Therefore, the Respondent No. 1 has permitted continuous violation of the environmental laws of the country putting the flora and fauna of the surroundings of Jivdani Temple in jeopardy. The violations are continuing even till date.
Rejoinder dated 08.11.2021 on behalf of the Applicant to the Affidavit in reply filed by Respondent No. 4
24. It is submitted that the present application has been moved by the Applicant against non-implementation of Forest (Conservation) Act, 1980, the Environment (Protection) Act, 1986 and the Environmental Impact Assessment Notification, 2006 by Respondent No. 4 who has failed to obtain Environmental Clearance (EC) before starting funicular ropeway project. The EIA Notification, 2006 has been enacted by Ministry of Environment, Forest and Climate Change (MoEF&CC) under Section 3(2) of the Environment (Protection) Act, 1986. Thus, non-compliance of the said provision amounts to violation of Environment (Protection) Act, 1986, hence, it is quite apparent that a substantial question of law is involved in the present matter.
25. As regards the plurality of causes of action, it is submitted by him that the Applicant has alleged in the present application that Respondent No. 4 had started the construction of funicular ropeway project without obtaining Environmental Clearance (EC), hence, the allegation concerns the single cause of action i.e., construction of the funicular ropeway project without obtaining Page 25 of 63 Environmental Clearance (EC). Version of the Respondent No. 4 contrary to it, is misleading and without merits.
26. With regard to consent to establish from Maharashtra Pollution Control Board (MPCB), it is stated that the Respondent No. 4 had obtained consent to establish from Maharashtra Pollution Control Board (MPCB) on 08.07.2020 i.e. much after the commencement of the project which is granted subject to certain conditions which includes "PP shall not take any effective steps prior to obtaining EC...". The said clause granting consent buttresses the submission of the Applicant that the Respondent No. 4 was obligated to obtain Environmental Clearance.
27. With respect to denying personal benefit in filing this application, he has stated that the Applicant has no personal agenda behind filing this application as he is not deriving any benefit out of it, nor has he sought any kind of compensation or restitution in the present application. The Applicant has nothing to do with the litigations of Respondent No. 4 with M/s DRIL. These are misleading submissions made by Respondent No. 4 in order to mislead the Tribunal. The Applicant had appeared in public hearing on 30.12.2020 and had placed certain facts before the committee presiding hearing, including the filing of the instant application and the order passed herein. But to utter surprise of the applicant, when he perused a copy of the Minutes of the public hearing dated 30.12.2020, it became clear that objections made by the Applicant had not been recorded in the Minutes. Immediately after the Meeting, he sent a letter dated 31.12.2020 to the Respondent in the form of written objection to the grant of Environmental Clearance (EC) along with all material evidence to highlight as to why the grant of Environmental Clearance would be an exercise in futility in the instant project, in as much as, the entire project had been constructed without grant of Environmental Clearance (EC). A copy of the OA application along with the order passed by this Tribunal dated 24.12.2020, had also been Page 26 of 63 enclosed herewith. In spite of this, there was no mention whatsoever found made in the Minutes of the Meeting dated 30.12.2020. Thereafter, the Applicant wrote another letter to the Respondent on 03.02.2021, pointing out that his objection was not recorded in the Minutes and that the project had been completed without Environmental Clearance (EC).
28. It is further stated that the contention of the Applicant is not that Respondent No. 4 did not have right to change the Ropeway system, rather the Respondent No. 4 ought to have obtained Environmental Clearance before commencement of construction of the project because under EIA Notification, 2006, the said project required obtaining Environmental Clearance (EC) from Respondent No. 1. Further, it is submitted that the funicular ropeway projects fall under the Category „B‟ 7(g) of EIA Notification, 2006 and in fact since 2006, all the funicular ropeway projects have been developed only after obtaining prior Environmental Clearance from Respondent No. 1. The Railway/ Metro Projects have been specifically excluded from the EIA Notification for a separate reason altogether. As such, the funicular ropeway project is completely different from the said projects. The Railway/ Metro Projects are alternate mode of transportation while funicular projects are made for convenience and add up to carbon emission. It is for this reason that the Ropeway projects have been expressly included under EIA Notification. If the Respondent No. 4 had any objection to EIA Notifications having included ropeway projects in its ambit, they ought to have challenged the virus of the EIA Notification before appropriate forum. Further, it is submitted that plantation of trees cannot be a defence for obviating obligations in the environmental laws, as that would set wrong precedent and would lead to gross violations of the said laws. The Applicant has filed various evidence like current photographs of the project, newspaper articles showing the completion of the project, ticket of ropeway showing the commissioning of the project, Article of Mumbai Mirror stating trial run of the Page 27 of 63 project, balance sheets of 2017-20, showing amount invested in funicular project and Minutes of Meetings dated 30.12.2020, stating 90% work had been completed since then, all these evidences indicate that the construction of project had been started much earlier without obtaining Environmental Clearance. The balance of convenience may be decided on the basis of harm being done to the environment.
29. It has wrongly been stated by Respondent No. 4 that the Applicant is a proxy of M/s DRIL. Contrary to the allegations of Respondent No. 4, the documents relied upon by the Applicant are in public domain, available on the website of Respondent No. 1 and not the private documents of Respondent No. 4, which the Respondent No. 4 is alleging as being available only with M/s DRIL. The Application filed by M/s DRIL was dismissed by this Tribunal vide order dated 09.09.2020 in Original Application No. 55/2020 (WZ) on the ground of delay in filing this application. However, there is no delay on the part of Applicant in filing the present application. The Tribunal had not gone into merits of the matter while dismissing the Original Application No. 55/2020 (WZ), therefore, the question of repeated adjudication does not arise and as such the present application is not barred.
30. The averments of the Respondent No. 4 that the application is time barred is erroneous as the cause of action to file this application arose on 18.11.2020 when the Applicant visited the Jivdani Devi Temple and came to know that the Respondent No. 5 had not obtained Environmental Clearance (EC) before starting the funicular ropeway project. He has relied upon the Judgment rendered by this Tribunal in the case of Kehar Singh v. State of Haryana reported as 2013 SCC Online NGT 52 and the relevant part of it has been quoted as below:-
Page 28 of 63
"16. Cause of action', therefore, must be read in conjunction with and should take colour from the expression 'such dispute'. Such dispute will in turn draw its meaning from Section 14(2) and consequently Section 14(1) of the NGT Act. These are interconnected and interdependent. 'Such dispute' has to be considered as a dispute which is relating to environment. The NGT Act is a specific Act with a specific purpose and object, and therefore, the cause of action which is specific to other laws or other objects and does not directly relate to environmental issues would not be 'such dispute' as contemplated under the provisions of the NGT Act. The dispute must essentially be an environmental dispute and must relate to either of the Acts stated in Schedule I to the NGT Act and the 'cause of action' referred to under Sub-section (3) of Section 14 should be the cause of action for 'such dispute' and not alien or foreign to the substantial question of environment. The cause of action must have a nexus to such dispute which relates to the issue of environment/substantial question relating to environment, or any such proceeding, to trigger the prescribed period of limitation. A cause of action, which in its true spirit and substance, does not relate to the issue of environment/substantial question relating to environment arising out of the specified legislations, thus, in law cannot trigger the prescribed period of limitation under Section 14(3) of the NGT Act. The term 'cause of action' has to be understood in distinction to the nature or form of the suit. A cause of action means every fact which is necessary to establish to support the right to obtain a judgment. It is a bundle of facts which are to be pleaded and proved for the purpose of obtaining the relief claimed in the suit. It is what a plaintiff must plead and then prove for obtaining the relief. It is the factual situation, the existence of which entitles one person to obtain from the court remedy against another. A cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which, taken with the law applicable to them, gives the plaintiff a right to relief against the defendant. It does not comprise evidence necessary to prove such facts but every fact necessary for the plaintiff to prove to enable him to obtain a decree. The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense, cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In wider sense, it means the necessary conditions for the maintenance of the suit including not only the infraction coupled with the right itself.Page 29 of 63
To put it more clearly, the material facts which are imperative for the suitor to allege and prove constitute the cause of action."
31. Relying upon the above, it is mentioned that the cause of action in the present application can only be said to have arisen on the day when the Applicant found out about the gross environmental violations being done by the Respondent Nos. 4 & 5, which is continuing on day to day basis, hence, the instant application is not barred by limitation. Rather the Respondent No. 4 has filed his opposition to the instant case after much delay without any explanation, as the instant application was served upon him in the month of December 2020, however, he did not take any steps to enter appearance forthwith. It is only as an afterthought that subsequent to the stay of operation of the Ropeway by order of this Tribunal on 02.09.2021 that the Respondent No. 4 has set up these frivolous pleas in order to evade the obligations under environmental laws.
32. Further, it is submitted that the funicular ropeway project requires far more construction and destruction of environment than the ordinary Monocable Pulsated Ropeway, because there are hundreds of pillars laid out on the ground for supporting the rail track like structure. In the application for Environmental Clearance, the Respondent No. 4 has explained the different types of ropeway systems and why funicular ropeway system was adopted instead of Monocable Pulsated Ropeway System. Not even once in the past the Respondent No. 4 even remotely had taken up the point that Environmental Clearance (EC) was not applicable to a funicular ropeway system. They all along knew the fact that the prior Environmental Clearance (EC) was required for the project and that was the sole reason why Environmental Clearance had been obtained in the year 2009 which expired in 2014. In the application for grant of Environmental Clearance, the Respondent No. 4 has explained how funicular ropeway system is a ropeway and a better one, however, in the affidavit of reply, he has attempted to state that funicular ropeway does not fall under the category of „ropeways‟ at all which is Page 30 of 63 ludicrous proposition in a desperate attempt to come out of the rigours of the laws. In fact, the construction and destruction is so enormous in funicular ropeways that the conditions for Environmental Clearance should be more strict.
33. Further, it is submitted that whether Environmental Clearance is mandatory for Respondent No. 4 for the said project, has to be decided by Respondent No.1, who in reply has specifically noted that the said project required a previous Environmental Clearance as the project is covered under Sr. No. 7(g) of the EIA Notification, 2006.
34. The Respondent No. 4 had made a query from Ropeway Advisory Board of Public Works Department (PWD) regarding the coverage of funicular project under aerial ropeway on 01st November, 2019 i.e. much after commencement of project. Contrary to the submissions of the Respondent No. 4, various other funicular ropeway projects under PWD, Maharashtra including Saptashringi Gad, Village Kalwan, Nashik and Hajimalang Gad Dargah, Village Wadi, Thane have obtained Environmental Clearance. It has been categorically mentioned in their Environmental Clearance application that the said funicular ropeway project falls under the Category „B‟ 7(g) of EIA Notification, 2006. The Environmental Clearance granted to the said projects are annexed.
35. The Respondent No. 4 itself has applied for Environmental Clearance vide ToR letter dated 25.09.2019 and went for public hearing on 30.12.2020. In the said letter, they themselves have admitted that the project is covered under Item 7(g) of EIA Notification, 2006 which requires Environmental Clearance. The said ToR letter was based on the premise that no construction work of funicular project had been started till then, which was completely false as in counter affidavit of Respondent No. 4, it has been mentioned by them that construction of the project had been started 1036 days prior to filing of the present application by the Applicant as he applied finally for Environmental Clearance vide application Page 31 of 63 dated 01.03.2021 annexed as Annexure C to the Rejoinder. The said application has been delisted by Respondent No. 1, therefore, it is an afterthought of Respondent No. 4 to contend that the said project does not require Environmental Clearance. The Respondent No. 4 conveniently managed to shelve the said obligation by sending letter dated 04.10.2021 to Respondent No. 1 requesting to declare that the pending application cannot be entertained for want of jurisdiction on the pretext that the said project was not covered under EIA Notification, 2006. The said conduct of Respondent No. 4 shows that they are acting in bad faith. The Respondent No. 4 was well aware of the fact that all the ropeway projects in the country require an Environmental Clearance under Item 7(g) of EIA Notification, 2006, because of which, in 2009 they had obtained an Environmental Clearance for construction of ropeway which expired in 2014 and a perusal of the Environmental Clearance obtained in 2009 would show that for a change in technology, a fresh Environmental Clearance (EC) was to be applied for before any construction could be started. But, the Respondent No. 4 in blatant disregard to the environment, hid their illegal action taking plea that their project was not covered under the provision which would require obtaining prior Environmental Clearance. The Respondent No. 1 being sole authority on the subject, had time and again clarified that prior Environmental Clearance was required for the project of Respondent No. 4. If the said project was not covered for prior Environmental Clearance (EC), the Respondent No. 1 would never have entertained such an application. Further, it is mentioned that if the Respondent No. 4 had an iota of doubt in their minds whether their project would require prior Environmental Clearance (EC) or not, instead of taking liberty to start construction of the project, they ought to have sought clarification before the start of the project.
36. Pertaining to the arising of substantial question of law related to environment, it is submitted that pursuant to Section 14 of the National Green Page 32 of 63 Tribunal Act, 2010, the Tribunal had the jurisdiction over all civil cases where substantial questions relating to environment are involved. Such substantial questions of law concern the implementation of the enactments specified in Schedule I to the Act which are enlisted as below:-
1. The Water (Prevention and Control of Pollution) Cess Act, 1977;
2. The Forest (Conservation) Act, 1980;
3. The Air (Prevention and Control of Pollution) Act, 1981;
4. The Environment (Protection) Act, 1986;
5. The Public Liability Insurance Act, 1991;
6. The Biological Diversity Act, 2002.
Affidavit dated 23.02.2022 of Respondent No. 4 to bring on record additional documents before final hearing
37. It is submitted in this affidavit by the Respondent No. 4 that Ministry of Environment, Forest and Climate Change (MoEF&CC) has now published DRAFT Notification on 02.02.2022 which has now proposed deletion of the project/activity under 7(g) Aerial Ropeway. Now, there is no requirement of 'Environmental Clearance‟ for the funicular ropeway as it is only for the use of devotees. The answering Respondent took legal opinion on this entire issue from Advocate Umesh D. SaIvi and Dr. Ajay Deshpande which is annexed and therefore, it is prayed that the matter be finally adjudicated on grounds of maintainability, merit and the status-quo order be adjudicated. The construction of the project started in the financial year 2017-18 and the project is already completed in all respect. Application ought to have been moved within six months when the cause of action arose first; and not when it came to the knowledge of the Petitioner. As per submission of the Applicant in the Rejoinder to MoEF&CC dated 07-05-2021 (appears to be of 05.07.2021), the Applicant in OA has stated that the entire work under the Funicular Ropeway Mechanism ensued only in the year 2017-18 and was carried on in the years 2018-19 and 2019-20 and a sum of Rs. 21,90,87,177/- was spent by Respondent No. 4 in its construction. There was no Page 33 of 63 protection to limitation under the guise and reason of Corona during that pre- pandemic period. The project/activity site was visited by Ministry of Environment, Forest and Climate Change (MoEF&CC), Maharashtra Pollution Control Board (MPCB) officials and they did not find any contravention of the provisions of any of the Acts. The project/activity works on electricity, doesn't have noise and doesn't use any natural resources other than land. The Forest Department has already given the land, taken compensation and afforestation also has been completed. The operation of the project/activity is not likely to cause any additional harm/damage/nuisance to the environment. Submissions dated 25.03.2022 on behalf of the Forest Department, Respondent Nos. 6 & 7- Government of Maharashtra through Chief Secretary and Maharashtra Forest Department through Principal Chief Conservator of Forests.
38. It is submitted by them that as per the site inspection report, the construction of the project had been initiated without prior Environmental Clearance and therefore, in the light of various authoritative pronouncements of the Hon'ble Supreme Court of India, the projects/ structures which had already been carried out without prior Environmental Clearance deserve to be demolished. The answering Respondents have been impleaded pursuant to the order of this Tribunal dated 02/09/2021.
39. There is violation of conditions of the project approved by the answering Respondents, therefore, answering Respondent has to initiate appropriate action in accordance with law and have submitted reply considering allegations in Interlocutory Application No. 83/2021. The Respondent No. 4 had approached the answering Respondent for diversion of forest land bearing Survey No. 398 situated at Virar (E), District-Palghar (then Thane) for renovation of Jivdani Devi Temple and allied construction activities including Ropeway vide letter dated 16th February, 1998. In response to that, the Government of India's Regional Office, Western Region, Bhopal approved Stage-1 vide letter dated 15th July 1999 (a copy Page 34 of 63 of the letter is annexed). The conditions laid down in the said Schedule-IA (one) have been properly complied with by Shri jivdani Devi Trust. The Forest Department of Government of Maharashtra filed report vide letter dated 13th March 2000 to that effect (copy of the letter is annexed). After submission of above reports, Regional Office, Ministry of Environment and Forest, Government of India approved Stage-II on 02nd May 2000 with certain conditions. Thereafter, Shri Jivdani Devi Mandir Trust- Respondent No. 4 has complied with all the conditions. Hence, the Forest Department i.e. Deputy Conservator of Forests, Thane, Forest Division vide letter dated 1st February, 2005 handed over 1.95 hector land to Respondent No. 4 for use of non-forestry purpose including Ropeways (copy of the letter is annexed). In the light of the relief sought in the present application, in order to submit the affidavit before the Tribunal, the concerned Forest Officer i.e. Deputy Conservator of Forests, Dahanu Forest Division, Dahanu directed its officer in-charge of that particular area to inspect the area properly and to submit his report. Pursuant to which the concerned Forest Officer conducted inspection of the disputed forest land and found that there was no violation of the conditions imposed upon Respondent No. 4 while granting sanction to the proposal. (The reports of Range Forest officer, Mandvi dated 25.11.2021 and the Assistant Conservator of Forest, Paighar dated 29.11.2021 have been annexed).
40. It is further submitted that as per Notification of Government of India dated 14th September, 2006 issued by the Ministry of Environment, Forest and Climate Change (MoEF&CC), it is clear that the Environmental Clearance is required for the project approved after the date of publication of the said Notification. The present project was cleared by the Government of India in the year 2000 and the forest land 1.95 ha. was also handed over to the Respondent No. 4 in the year 2005 i.e. before commencement of the above notification of 2006. As informed by the Respondent No. 4, the work in question was allotted to Page 35 of 63 M/s. Damodar Ropeways and Construction Co. (Pvt) Ltd, which applied to State Government, Environment Department, Mantralaya, Mumbai for granting them Environmental Clearance on the basis of which the Government of Maharashtra vide letter dated 17th September, 2009 (Copy of order is annexed) accorded sanction for the Environmental Clearance. Therefore, the Forest Officers inspected the said area and they found that no violations of the conditions imposed upon by the Respondent No. 4 while granting sanctions to the proposal. On 28.04.2022 additional documents filed by Respondent No. 4
41. Respondent No. 4 has filed additional documents through index at page 1326 with the paper book and submitted that the present application was finally heard by this Bench on 27.04.2022 and directed to send by email the compilation of Judgments on the issue of Limitation, which has been sent by him. Further, it is mentioned most importantly that MoEF&CC has published final Gazette dated 27.04.2022 "The project/activity „7(g) of Aerial Ropeway‟ has been deleted from EIA Notification dated 14.09.2006 (copy of which has been annexed)
42. Thereafter, the Applicant has filed one document which is Judgment of National Company Law Appellate Tribunal, Principal Bench, New Delhi in Company Appeal (AT) (Insolvency) No. 936/2021 delivered on 10th January, 2022.
43. Apart from that, written submissions have also been filed by the Applicant and Respondent No. 4.
44. Based on the above pleadings, the Tribunal is of the view that following points arise for consideration:-
(i) Whether the project/activity „7(g) Aerial Ropeway which finds mention in the EIA Notification dated 14.09.2006, would cover the funicular ropeway project also?
(ii) Whether in the light of the current Notification dated 27.04.2022 issued by the Ministry of Environment, Forest and Climate Change Page 36 of 63 (MoEF&CC), Government of India to the effect "......... in the Schedule to the said notification, under heading "Physical Infrastructure including Environmental Services", Item 7 (g) and the entries therein shall be omitted..." would now come to the aid of the Respondent No. 4 and to give benefit to the extent that even if the funicular ropeway project is found covered under the definition of aerial ropeway as provided in 7(g) Clause of the EIA Notification, 2006, now with the deletion of the entire said clause, would amount to that Respondent No. 4 may go ahead with the said project being made functional?
(iii) Whether the Original Application is time barred ?
(iv) Whether the Applicant has locus standi to file the present Application?
45. Heard the Learned Counsel for the Applicant, Respondent Nos. 1, 4 & 8 and perused the record.
Finding on the issue at Sr. No. (i):
a). As per this issue, we have to decide as to whether the project/activity at Sr. No. 7 (g) of Scheduled to EIA Notification, 2006 pertaining to „Aerial Ropeway‟ would cover the „Funicular Ropeway‟ project also.
From the pleadings mentioned above, it is quite clear that the Applicant who is claiming to be a law-abiding citizen and a practicing Advocate of Hon‟ble High Court and also a devotee of Jivdani Mandir had happened to visit Temple on 18/11/2020 after about 5 years and found „Funicular Ropeway‟ system at the site and on enquiring from the local people came to know that the said construction had begun about 3 years ago. The Environment Clearance was given for the said project on 17/09/2009 for Monocable Pulsated Ropeway Project which had expired on 16/09/2014 but the same expired on 16/09/2014. Thereafter, Respondent No. 5 started construction of the project in the year 2018 without obtaining EC. Obtaining EC for such a project was mandatory as per Clause 7 (g) of the Schedule of Page 37 of 63 Environment Impact Assessment (EIA) Notification, 2006. Respondent No. 4 had applied for Environment Clearance (EC) on 30/09/2019 after substantial construction work had already been done of the said project. In the said application, reference was made to the prior EC granted to another company on 07/09/2009 and that due to the change of technology, the work of ropeway had been halted. The said facts were actually misrepresentation because the „Funicular Ropeway‟ project was a new project for which application for EC was moved on 25/09/2019 and it was also misrepresented that the construction would be done at a future date, because the construction had already begun in the year 2019. In the „Funicular Ropeway‟ project, construction is done on land and involves laying down of railway track on ground which has the potential of vast environmental damage, while the Mono Cable Pulsated Fixed Grip Passenger Rope required only two pillars to be constructed on the ground and would cause minimal damage to the environment. Consent to Operate and Consent to Establish had also not been obtained by Respondent No. 5 from the State PCB which amounted to acting contrary to the Environment (Protection) Act, 1986 as well as the Environment Impact Assessment Notification, 2006 along with Water (Prevention and Control of Pollution) Act, 1974. On 04/12/2020, the Applicant came across a notice by MPCB scheduling a public hearing on 30th of December, 2020 for grant of EC wherein the Applicant had appeared and placed certain facts before the Committee presiding the hearing, but to his utter surprise, upon perusal of the Minutes of the said hearing, he found that none of his objections had been recorded. He tried to take up this matter with the Respondent authorities but to no avail. Respondent No. 4 had no objection to the EIA Notification, 2006 Page 38 of 63 having included ropeway projects in its ambit and that if they had any objection, they could have challenged its virus before appropriate forum, but they did not do so. The Respondent No. 4 has made a volte-face from their earlier stand that Funicular Ropeway System is a ropeway and a better one and now that the same does not fall in the category of „Aerial Ropeway‟ and would not be treated as covered under Sr. No. 7(g) of EIA Notification 2006, which is completely unbelievable and an afterthought, in order to circumvent the rigors of law. Therefore, the entire construction work needs to be demolished and the site needs to be restored to its original condition. To the contrary, the stand of the Respondent No. 4/Project Proponent (PP) is that it is a public trust, which first of all decided to set up a Funicular Ropeway System in the year 2004, invited tenders and contract was awarded to M/s Damodar Ropeways Infra Ltd. (DRIL) to carry out the construction work. Later, the project was changed from funicular to aerial ropeway in 2007, which facility was falling under 7(g) of the schedule of EIA Notification, 2006, therefore, EC was obtained by DRIL for „Aerial Ropeway‟ on 17/09/2009, but when no progress was made for about 10 years, the said contract was cancelled in the year 2017. Thereafter, the DRIL went for commercial arbitration claiming losses of Rs. 17 crores, where against, counterclaim of 72 crores was lodged and thereafter, no effective hearing could take place. The Applicant in the present matter is a proxy of DRIL and has filed the present case with a view to harassing Respondent No. 4 after the Original Application No.55/2020 having been rejected vide order dated 09/09/2020 by this Tribunal filed by DRIL. The Funicular Ropeway System was found to be more advantageous and in alignment of Jivdani Mandir, hence the trust changed to that system and informed Page 39 of 63 the Forest Department about its intent. An order for "diversion of forest land" was passed by the Forest Department mentioning just „Ropeway‟ and not „Aerial Ropeway‟, nor the Forest Department had put any conditions on the type of ropeway to be installed by the Trust. The legality of any Ropeway has to be decided by the Government of Maharashtra. Therefore, whether „Funicular System‟ is an „Aerial Ropeway‟ under the law in Maharashtra, was to be decided under Bombay Aerial Ropeway Act, 1955, which provides for Ropeway Advisory Committee of PWD. It was not clear to the Respondent No. 4 as to whether „Funicular Ropeway‟ system would be covered under „„Aerial Ropeway‟ as per the Bombay Aerial Ropeway Act, 1955, hence with abundant precaution and to avoid any violation of laws, the Trust applied for permission under the said Act before the appropriate authority and simultaneously also applied for EC which is mandatory for "„Aerial Ropeway‟ ‟ as per EIA Notification 2006. The "Ropeway Advisory Committee" of the Maharashtra State formally replied vide letter dated 30/11/2019 that "Funicular System" is not considered by them as "„Aerial Ropeway‟ " under the Governing Act of 1955 for „Aerial Ropeway‟ in Maharashtra. This removed all doubts of the Respondent No. 4 with regard to funicular system not being „Aerial Ropeway‟.
b). The stand of the Respondent No. 1 is that the instant project being a ropeway project falls under the activity 7 (g) of the Schedule of EIA Notification, 2006 under category- A due to the applicability of general conditions as the project reportedly lay at 4.4 kilometer-E from Wildlife Sanctuary (Tungareshwar Wildlife Sanctuary) notified under Wildlife Protection Act, 1972 and 2.5 metre from Eco-Sensitive Zones (ESZ) of Tungareshwar Wildlife Sanctuary notified on 11/09/2019. Page 40 of 63 The Respondent No. 4 had applied for ToR with the Respondent No. 1 vide proposal dated 30/09/2019 for implementation and operation of the present project in order to promote tourism at Jivdani Temple, to reduce traffic congestion in the region. On 17-18th October 2019, the Expert Appraisal Committee had appraised the project in question and recommended ToR for preparation of EIA/Environmental Management Plan (EMP) report as per the provisions of EIA Notification, 2006. At the recommendation of Expert Appraisal Committee (EAC), the Respondent No. 4 was granted ToR on 03/12/2019. The draft EIA/EMP report shall be submitted to the State Pollution Control Board for public hearing and the issues emerged and the response to the issues would be incorporated in EIA report. The ToR would be valid for 4 years for submission of EIA/EMP reports. The final EIA report, so prepared, shall be submitted by Applicant to the concerned regulatory authority on PARIVESH (website) for appraisal by the Expert Appraisal Committee or State- Level Expert Appraisal Committee. Thereafter, the application and other documents like the final EIA report, outcome of the public consultations including public hearing proceedings, would be submitted by the applicant to the regulatory authority concerned for grant of EC. As per the information available on PARIVESH, no proposal from PP for grant of Environmental Clearance has been submitted so far.
c). Therefore, it is apparent that even according to Respondent No. 1, the „Funicular Ropeway‟ system would be treated covered under the „Aerial Ropeway‟ as provided in Schedule of EIA Notification, 2006 at Serial 7 (g). The plea taken by the learned counsel for the Respondent No. 4 does not sound logical to us that „Funicular Ropeway‟ system Page 41 of 63 would not fall in the „Aerial Ropeway‟ category, because it is absolutely clear that the Aerial Ropeway system would require only 2 pillars to be installed connected with the rope while in funicular system, a large number of pillars would have to be installed on the ground for running the system which would definitely cause larger uprooting of vegetation in its setting up. When a large number of people would be using the said system, it would be difficult for us to believe that the same would not result in causing environmental degradation at all. The funicular system of ropeway is nothing but a kind of ropeway which would be treated nothing but close to „Aerial Ropeway‟, hence the said system would also be treated as covered under the Schedule of EIA Notification 2006 at Sr. No. 7(g). This view also stands fortified by the fact that, the Respondent No. 1 itself had applied for the EC and later changed its stand that such EC was not required as the „Funicular Ropeway‟ system would not be covered under 7 (g). It has come on record from the side of Respondent No. 1 that there are other „Funicular Ropeway‟ systems established in other parts of the country, wherein, the project proponents had obtained EC. The argument of the Learned Counsel for the Respondent No. 4 that they were not sure whether the „Funicular Ropeway‟ system would be covered under 7 (g) or not and that because of cross advices by experts, they had moved for EC by way of precaution, but that would not amount to their conceding that the „Funicular Ropeway‟ system would be covered under 7 (g), as provision cannot change only because of moving an application for EC by fault. This argument also does not appear to be a sound argument to us. Merely because at serial 7 (g) only „Aerial Ropeway‟ has been mentioned that, in our estimation would also include any kind of ropeway, more so a ropeway, which would be Page 42 of 63 needing installation of larger number of pillars on the ground for its effective functioning. Under law, it is not necessary that every kind of ropeway would have been narrated in detail, in order to bring „Funicular Ropeway‟ also to be under Serial 7 (g). Therefore, this point is decided against Respondent No. 4 and in favour of the Applicant. Finding on the issue at Sr. No. (ii):
a). The Tribunal has to decide as to whether in the light of the current Notification dated 27.04.2022 omitting Item 7(g) and the entries relating thereto in the Schedule of Environment Impact Assessment (EIA) Notification, 2006 under the "Physical Infrastructure including Environmental Services", the Respondent No. 4 would get the benefit of the said Notification, even if, the Tribunal comes to the conclusion that „Funicular Ropeway‟ project is found covered under the definition of „Aerial Ropeway‟ and may be allowed to go ahead with the said project to make it functional. For this, the Tribunal would have to opine whether such a Notification would be effective prospectively or retrospectively.
b). We would like to rely on M/s Purbanchal Cables & Conductors Pvt. Ltd.
Vs. Assam State Electricity Board & Anr., (2012) 7 SCC 462, wherein the matter of retrospective operation of the Act came under consideration and the following paragraphs which are found relevant, are being reproduced herein below:-
„‟32. The fundamental rule of construction is the same for all statutes whether fiscal or otherwise. The under-lying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather from any notion. To arrive at the real meaning, it is always necessary to get an exact conception, scope and object of the whole Act.Page 43 of 63
33. In the case of Zile Singh v. State of Haryana - (2004) 8 SCC 1, this Court observed that there were four relevant factors which needed to be considered while considering whether a statute applied prospectively or retrospectively:
"15....Four factors are suggested as relevant: (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the legislature contemplated...."
34. The general scope of the Act has been discussed above. The remedy sought to be applied by the Act is made clear in the Statement of Objects and Reasons, in which, it is stated that due to the delayed payments by buyers to the small scale industries, their working capital was being affected, causing great harm to the small scale industries in general. This Act was passed by Parliament to impose a heavy interest on the buyers who delayed the payments of the small scale industries, in order to deter the buyers from delaying the payments after accepting the supplies made by the suppliers.
35. The policy statement of the Ministry of Micro, Small and Medium Enterprises dated 06th August, 1991, reads:
"3.4) A beginning has been made towards solving the problem of delayed payments to small industries setting up of „factoring‟ services through Small Industries Development Bank of India (SIDBI). Network of such services would be set up throughout the country and operated through commercial banks. A suitable legislation will be introduced to ensure prompt payment of small industries‟ bills."
36. Keeping in view the above object, the Act was enacted by the Parliament. Before such enactment, it is required to examine rights of the supplier qua the buyer prior to the commencement of the Act. In case of delayed payment, the supplier, prior to the commencement of the Act, was required to file a suit for the payment of the principal amount, and could claim interest along with the principal amount. The supplier could avail of the same under Section 34 of the Code of Civil Procedure, 1908 (hereinafter referred to as „the CPC'), Section 61 of Sale of Goods Act, 1930 and Section 3 of Interest Act, 1978.
37. In other words, the supplier whose payment was delayed by the buyer prior to the commencement of the Act, could file a suit Page 44 of 63 for payment of the principal amount along with the interest. The supplier, thus, had the vested right to claim the principal amount along with interest thereon in case of a delay in payment by the buyer and it was the discretion of the Court to award this interest.
38. The Court has the discretion to award interest along with the principal amount and the same is clear from the use of the word „may‟ in all the three provisions cited above. Section 34 of the CPC is the main provision under which interest could be awarded by the Court and Section 61 of the Sale of Goods Act, 1930 is an offshoot of Section 34 of the CPC. Section 3 of the Interest Act, 1978 also makes the Interest Act subject to the provision of Section 34 of the CPC. Hence, we can safely deduce that the interest awarded is a discretion exercised by the Court, on the principal amount claimed, in case of a suit for recovery of payment by the supplier if such payment is delayed by the buyer.
39. With the commencement of the Act, a new vested right exists with the supplier, that being, if there is delay in payment after the acceptance of the goods by the buyer, the supplier can file a suit for claiming interest at a higher rate, as prescribed by the Act. This position has been approved by this Court in the case of Modern Industries (supra). If a suit for interest simpliciter is maintainable as held by this Court in Modern Industries (supra), then a new liability qua the buyer is created with the commencement of the Act giving a vested right to the supplier in case of delayed payment. In other words, if there is a delayed payment by the buyer, then a right to claim a higher rate of interest as prescribed by the Act accrues to the supplier.
40. The phrase „vested right‟ has been defined by this Court in the case of Bibi Sayeeda Vs. State of Bihar as: (SCC p. 527, para 17) "17. The word „vested‟ is defined in Black's Law Dictionary (6th Edn.) at p. 1563 as:
"Vested; fixed; accrued; settled; absolute; complete. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent."
Rights are „vested‟ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster's Comprehensive Dictionary, (International Edn.) at p. 1397 „vested‟ is defined as: Page 45 of 63
"[L]aw held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interests.‟ "
41) A statute creating vested rights is a substantive statute. This Court, in Dhenkanal Minor Irrigation Division v. N. C. Budharaj, opinioned : (SCC p. 742, para 23) "23. ... "Substantive law", is that part of the law which creates, defines and regulates rights in contrast to what is called adjective or remedial law which provides the method of enforcing rights.
Decisions, including the one in Jena case while adverting to the question of substantive law has chosen to indicate by way of illustration laws such as Sale of Goods Act, 1930 [Section 61(2)], Negotiable Instruments Act, 1881 (Section 80), etc. The provisions of the Interest Act, 1839, which prescribe the general law of interest and become applicable in the absence of any contractual or other statutory provisions specially dealing with the subject, would also answer the description of substantive law..."
42. In the case of Thirumalai Chemicals Limited Vs. Union of India this Court comparing substantial law with procedural law, stated: (SCC pp. 748-49, paras 23-24) "23. Substantive law refers to a body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statute is prospective unless it is expressly or by necessary implication made to have retrospective operation."
24. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right, and an aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective meaning thereby that it will apply even to acts or transactions under the repealed Act."
Page 46 of 63
43. In the case of Shyam Sunder Vs. Ram Kumar, a Constitution Bench of this Court discussing the scope and ambit of a declaratory law has observed: (SCC p. 49, para 39) "39. Lastly, it was contended on behalf of the appellants that the amending Act whereby new Section 15 of the Act has been substituted is declaratory and, therefore, has retroactive operation. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or to explain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word "declaration" in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective. Conversely where a statute uses the word "declaratory", the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law."
44. In Katikara Chintamani Dora Vs. Guntreddi Annamanaidu, this Court held: (SCC p. 582, para 50) "50. It is well settled that ordinarily, when the substantive law is altered during the pendency of an action, rights of the parties are decided according to law, as it existed when the action was begun unless the new statute shows a clear intention to vary such rights (Maxwell on Interpretation, 12th Edn. 220).
That is to say, "in the absence of anything in the Act, to say that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed"."
45. In Govind Das Vs. ITO - (1976) 1 SCC 906, this Court speaking through P.N. Bhagwati. J., (as he then was) held:
"11. Now it is a well settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general Page 47 of 63 rule as stated by Halsbury in Vol. 36 of the Laws of England (3rd Edn.) and reiterated in several decisions of this Court as well as English courts is that "all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective" and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."
46. In the case of Jose Da Costa Vs. Bascora Sadasiva Sinai Narcornium, this Court held: (SCC p. 925, para 31)
31. Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well-established principles. The first is that "while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment (see Delhi Cloth and General Mills Co. Ltd. v. ITC.) The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule viz. (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the court to which appeal lay at the commencement of the suit stands abolished (see Garikapati Veeraya v. N. Subbiah Choudhury and Colonial Sugar Refining Co. Ltd. v.
Irving).
47. In K. Kapen Chako Vs. Provident Investment Co. (P) Ltd., this Court discussing the dicta of the English Courts on the aspect of retrospectivity observed: (SCC pp. 602-03, paras 37-39) "37. A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied. In that connection the former Page 48 of 63 state of the law is to be considered and also the legislative changes contemplated by the statute.
Words not requiring retrospective operation so as to affect an existing statutory provision pre-judicially ought not be so construed. It is a well recognised rule that statute should be interpreted if possible so as to respect vested rights. Where the effect would be to alter a transaction already entered into, where it would be to make that valid which was previously invalid, to make an instrument which had no effect at all, and from which the party was at liberty to depart as long as he pleased, binding, the prima facie construction of the Act is that it is not to be retrospective. (See Gardner v. Lucas)
38. In Moon v. Durden a question arose as to whether Section 18 of the Gaming Act, 1845 which came into effect in August 1845 was retrospective so as to defeat an action which had been commenced in June 1845. The relevant section provided that no suit shall be brought or maintained for recovering any such sum of money alleged to have been won upon a wager. It was held that it was not retrospective.
Parke, B. said: (ER p. 398) "It seems a strong thing to hold that the legislature could have meant that a party who under a contract made prior to the Act, had as perfect a title to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation."
39. Again in Smithies v. National Union of Operative Plasterers Section 4 of the Trade Disputes Act, 1906 which enacted that an action for tort against a trade union shall not be entertained by any court was held not to prevent the courts from hearing and giving judgment in actions of that kind begun before the passing of the Act. It is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action. See Re Joseph Suche & Co. Ltd. If the legislature forms a new procedure alterations in the form of procedure are retrospective unless there is some good reason or other why they should not be. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties it will be held to apply prima facie to all actions, pending as well as future."
Page 49 of 63
48. In the case of Dahiben Vs. Vasanji Kevalbhai, this Court held:
(SCC pp. 299-300, para 12) "12. As the amendment in question is not to a procedural law, it may be stated that the settled principle of interpretation, where substantive law is amended, is that the same does not operate retrospectively unless it is either expressly provided or the same follows by necessary implication. Lest it be thought that a vested right cannot be taken away at all by retrospective legislation, reference may be made to Rafiquennessa v. Lal Bahadur Chetri where it was stated that even where vested rights are affected, legislature is competent to take away the same by means of retrospective legislation; and retrospectivity can be inferred even by necessary implication."
49. In the case of Zile Singh Vs. State of Haryana, this Court examined the various authorities on statutory interpretation and concluded: (SCC pp. 8-9 paras 13-14) "13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only -- "nova constitutio futuris formam imponere debet non praeteritis" -- a new law ought to regulate what is to follow, not the past.
(See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p. 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., p. 440).
14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is "to explain" an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective Page 50 of 63 operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pp. 468-69)."
50. In the case of State of Punjab Vs. Bhajan Kaur, this Court held: (SCC p. 116, para 9) "9. A statute is presumed to be prospective unless held to be retrospective, either expressly or by necessary implication. A substantive law is presumed to be prospective. It is one of the facets of the rule of law."
51. There is no doubt about the fact that the Act is a substantive law as vested rights of entitlement to a higher rate of interest in case of delayed payment accrues in favour of the supplier and a corresponding liability is imposed on the buyer. This Court, time and again, has observed that any substantive law shall operate prospectively unless retrospective operation is clearly made out in the language of the statute. Only a procedural or declaratory law operates retrospectively as there is no vested right in procedure.
52. In the absence of any express legislative intendment of the retrospective application of the Act, and by virtue of the fact that the Act creates a new liability of a high rate of interest against the buyer, the Act cannot be construed to have retrospective effect. Since the Act envisages that the supplier has an accrued right to claim a higher rate of interest in terms of the Act, the same can only said to accrue for sale agreements after the date of commencement of the Act, i.e. 23rd September, 1992 and not any time prior."
c). In view of above position of law, it would be proper for us to appraise the object of the said Amendment in Item 7(g) of Schedule to the EIA Notification, 2006 and whether it would be treated to be substantive law or a procedural one. Because the general principal says that substantive law should normally be applicable prospectively but the procedural law may be applied with retrospective effect. The said determination needs to be made on the basis of going through the object of the said Amendment. The Ministry of Environment, Forest Page 51 of 63 and Climate Change (MoEF&CC) in earlier Notification dated 22.02.2022 says that it was in receipt of representation from Ministry of Road, Transport & Highways, stating that Ropeways are an important component of the transport network of the country as it can be used to provide last mile connectivity as well as mobility in hill areas and the requirement of Environmental Clearance (EC) for these projects came only in 2006 and before that these projects were excluded from the requirement of Environmental Clearance (EC). Therefore, the Ministry was requested to review the said Notification and exclude the ropeways from the projects requiring prior Environmental Clearance (EC). Further, it is mentioned in the said Notification that public utility ropeways have been excluded from the ambit of Forest (Conservation) Act, 1980 subject to certain conditions as per letter F. No. 5-2/2017/FC dated 05.08.2019. The matter was referred to the Expert Appraisal Committee (EAC) of Infrastructure Sector in the Ministry for Deliberation and that after a detailed deliberation, the said Expert Committee recommended that the „Aerial Ropeway‟ is an environment friendly mode of transport in hill areas with least impact on environment compared to roads/highways and recommended that „Aerial Ropeway‟ projects may be excluded from the ambit of EIA Notification, 2006 subject to certain environmental safeguards provided from time to time. Therefore, in exercise of powers conferred under Sub-Section-1 and Clause (v) of Sub-Section (2) of Section 3 of the Environment (Protection) Act, 1986 read with Clause „D‟ of Sub-Rule (3) of Rule 5 of Environment (Protection) Act, 1986, the Central Government has decided to omit Item 7(g) and entries relating thereto from the EIA Notification, 2006. The final Notification after completing the entire procedure, has also been Page 52 of 63 issued on 27.04.2022, therefore, as on date, the position stands that no Environmental Clearance (EC) would be required for the project falling under Item 7(g) of the Schedule to EIA Notification, 2006. The object, if one would go through the said Notification, for omitting the said Clause, seems to be the public interest as the „Aerial Ropeway‟ is found to be necessary for last mile connectivity and mobility in the hill areas which is found to be least injurious to the environment and that the Environmental Clearance (EC) was made essential for the same in the year, 2006 and not prior to that and therefore, again, it has been reconsidered and it has been found that the same does not require to be in the Schedule to the Notification of EIA, 2006. To us, the said deletion/omission from the EIA Notification, 2006 does not appear to be change in substantive law rather it is a procedural one, change having been brought about in view of public interest and also finding it to be least injurious to the environment, therefore, it (Notification) is being found to be a procedural one and hence, it would be applicable with retrospective effect. In the present case, according to the Applicant, Respondent Nos. 4 & 5 are stated to have not obtained prior Environmental Clearance (EC) before initiating the „Funicular Ropeway‟ project and started construction thereof since July 2018 and therefore, it is prayed by him that the entire structure which has been built up by the Respondent Nos. 4 & 5, should be directed to be demolished and the site should be restored to its original position. We find that a huge amount has already been spent by the Respondent Nos. 4 & 5, in installation of the „Funicular Ropeway‟ system. As per the Respondent No. 4, a sum of Rs. 32 crores and above (as some amount is said to have been taken by them from bank as well) has already been spent and even then, the use of the said facility is not Page 53 of 63 being allowed to be availed of by any of the devotees of the Shri Jivdani Temple which is being managed by Respondent No. 4- Shri Jivdani Devi Temple Trust. We are of the view that in view of the Government having repealed Clause Item 7(g) of the Schedule to EIA Notification, 2006, the same would apply retrospectively and benefit would go to the Respondent No. 4 subject to the conditions which have been issued by MoEF&CC, Government of India vide OM dated 27.04.2022 which are as follows:-
i. All statutory compliance/clearances should be obtained and all necessary acts/rules are to be obeyed.
ii. Disaster Management Plan as per the Disaster Management Act may be got approved from Competent Authority.
iii. Plantation shall be taken up in accordance to State laws, if required, preferably with heavy foliage, broad leaves and wide canopy.
iv. Appropriate Air Pollution Control (APC) system (both during the construction/operation) shall be provided for all the dust generating points inter-alia including loading, unloading, transfer points, fugitive dust from all vulnerable sources, so as to comply prescribed standards.
v. Diesel power generating sets, if any, as source of backup power should be of enclosed type and conform to rules made under the Environment (Protection) Act, 1986. The height of stack of DG sets should be equal to the height needed for the combined capacity of all proposed DG sets. Low sulphur diesel may be used. The location of the DG sets may be decided in consultation with State Pollution Control Board.
vi. Base line Noise level survey shall be carried out prior to start of construction as per the prescribed guidelines. The ambient noise levels should conform to the standards Page 54 of 63 prescribed under Noise Pollution (Regulation and Control) Rules, 2000.
vii. No wastewater shall be discharged in open. Appropriate Water Pollution Control system shall be provided for the treatment of waste water.
viii. Energy conservation measures should be integral part of the project design and should be in place before project commissioning.
ix. Solar energy to the extent possible may be used in the project i.e., at upper terminal and lower terminal to reduce the carbon footprint.
x. Adequate parking shall be constructed at upper terminal and lower terminal. Project Proponent shall ensure smooth traffic management and minimum waiting time. A detailed traffic management and a traffic decongestion plan should be drawn up around the project and implemented to the satisfaction of the State Urban Development / Transport Departments xi. The company shall have a well laid down environmental policy duly approved by the Board of Directors. The environmental policy should prescribe for standard operating procedures to have proper checks and balances and to bring into focus any infringements/deviation/violation of the environmental / forest /wildlife norms/ conditions. The company shall have defined system of reporting infringements/ deviation / violation of the environmental/ forest/ wildlife norms/ conditions and/or shareholder's/stake holders.
xii. Self-environmental audit shall be conducted annually. Every three years third party environmental audit shall be carried out.
d). Therefore, this issue is decided in favour of the Respondent No. 4 against the Applicant.Page 55 of 63
Finding on the issues at Sr. Nos. (iii) & (iv):
a). As per the issue, whether the Original Application is time barred and as per the issue no. 4, it is to be decided whether Applicant has locus standi to file this application, both the issues are being taken up together. As per Section 14, six months‟ time period has been prescribed for entertaining an application pertaining to a dispute, from the date on which the cause of action for such dispute first arose and that if satisfied, the Tribunal may allow a further period of sixty days, not exceeding 60(sixty) days, upon the Applicant showing sufficient cause for not being able to file the application within the said prescribed limit. For the sake of convenience, the said provision is reproduced herein below:-
Section 14 of the NGT Act: (1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. (2) The Tribunal shall hear the disputes arising from the questions referred to in sub- section (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute 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.
This Tribunal confers on the Tribunal, the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I to the Act. It further provides a time- limit of six months within which the applications of adjudication of dispute under this section shall be Page 56 of 63 entertained by the Tribunal. It also empowers the Tribunal to allow such applications to be filed within a further period not exceeding sixty days, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period. (Notes on Clauses) Section 15 provides that if an application is moved for grant of any compensation or relief of restitution of property or environment under this Section, the same shall be entertained, if it is moved within a period of five years from the date on which the cause for such compensation or relief first arose and again, if the Tribunal is satisfied that the Applicant was prevented from moving the said Application within the said prescribed limit because of sufficient cause, it may grant further period not exceeding sixty day. The said provision is also quoted herein below for the sake of convenience:-
Section 15 of the NGT Act: (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) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-
section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991.
(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.Page 57 of 63
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority.
This clause empowers the Tribunal to provide for the relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance), or for restitution of property damaged; or for restitution of the environment for such area or areas. Sub-clause (2) provides that the relief and compensation and restitution of property and environment referred to in sub-section (1) shall be in addition to the relied paid or payable under the Public Liability Insurance Act, 1991. Sub-clause (3) provides a time- limit of five years within which the applications for grant of any compensation or relief or restrution of property or environment under this section shall be entertained by the Tribunal. It also empowers the Tribunal to allow such applications to be filed within a further period not exceeding sixty days, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period. Sub-clause (4) provides that the Tribunal may, having regard to the damage to public health, property and environment, divide the compensation payable under separate heads mentioned in Schedule II so as to provide relief to the claimants and for restitution of the damaged property or environment, as it may think fit. Sub-clause (5) imposes a duty on claimant to the Tribunal intimate about the application filed to, or, as the case may be, relief received from, any other Court or authority. (Notes on Clauses).
Page 58 of 63
b). It would not be out of place to mention here that the National Green Tribunal Act, 2010 is a special Act to deal with multidisciplinary issues involving environmental cases with expedition relating to environmental protection, conservation of forest and other natural resources including enforcement of any legal right relating to environment. The jurisdiction has been conferred upon the Tribunal of all civil cases where substantial question relating to environment (including enforcement of any legal right relating to environment is involved) and such questions arise out of implementation of enactments specified in Schedule I to the Act and to grant relief and compensation to the victims of pollution and other environmental damages arising under the enactments specified in Schedule I and also to their appeals under certain enactments specified in Schedule 3 to the Act. Therefore, this being a special Act, has been given over-riding effect on all other Acts, the Tribunal is of the view that the limitation which has been prescribed under the above mentioned Sections has to be strictly followed and even if, extension of time is to be allowed, that too, cannot exceed 60 (sixty) days upon showing sufficient cause.
c). In the light of above position of law, we have to scrutinize as to whether the relief claimed by the Applicant would fall within the time limit prescribed as above. The prayer would show that the Applicant has prayed for a direction to be issued to the Respondents that without prior Environmental Clearance, no further work in respect of „Funicular Ropeway‟ project which is constructed illegally by the Respondent No. 4, is permitted to go on and that Respondent Nos. 1, 2 & 3, we directed immediately to demolish/remove the structures already raised by the Respondent No. 4 and the land be restituted to its original condition. As far as the relief „B‟ seeking restitution of the Page 59 of 63 land to its original condition is concerned, the same would be covered under Section 15 of the National Green Tribunal Act, 2010 quoted above which provides five years period from the date when the cause of action first arose. The Applicant has pleaded that he is a strong devotee of the Jivdani Temple and that on 21.01.2020 when he came to know about the project through the newspaper reports about the illegalities involved in the construction of the project, he made independent search on his own. Therefore, the period of limitation should be calculated from the date i.e. 21.01.2020. The Respondent No. 4 is vehemently opposing the said date to count period of limitation from, saying that the Applicant has come before the Tribunal after 1036 days of the start of work at the site on 12.02.2018 and that the project is now fully operational on 04.02.2021 and occupancy certificate by Vasai Virar City Municipal Corporation(VVCMC) has been granted. The date of visit on 18.11.2020, when the Applicant is said to have visited the site, cannot be treated to be a date for cause of action because if such an intimate devotee who visits often every five years, would have visited after 10 years, then it could not shift the date of arising of cause of action. He has questioned the Applicant‟s being a true devotee also and has set up a ground that he is a proxy of DRIL which was earlier awarded the contract by Respondent No. 4 to raise the construction of „Aerial Ropeway‟, but whose contract was later on cancelled and the same was awarded to Respondent No. 5.
d). We would have to see as to who can file an application before this Tribunal seeking relief. For this, provision is found under Section 14 & 15 of the said Act. The said Sections do not appear to prohibit a person feeling aggrieved, to file an application for seeking relief as has Page 60 of 63 been done in the present case by the Applicant. The denial at the end of Respondent No. 4 that the Applicant may not be taken to be a devotee of the Jivdani Temple because he visits the said Temple after too long a gap and his being a devotee should be treated to be suspect, does not appeal to reason. Therefore, it cannot be said that the Applicant did not have a locus standi to file the present application. Accordingly, as the Respondent No. 4 having said that work started at 12.02.2018 at the project site, five years period be counted from then, if limitation is calculated from that date, it would expire on 11.02.2023 because the relief of restitution has also been sought by the Applicant. Therefore, on this count, we do not find any delay on the part of the Applicant to move the present application. The Learned Counsel for the Respondent No. 4 has prayed reliance upon -
COMPILATION OF JUDGMENTS ON THE ISSUE OF LIMITATION
1. L. C. Hanumanthappa v. H. B. Shivakumar - (2016) 1 SCC 332
2. Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr. -(2011) 9 SCC 126
3. Board of Trustees of Port Kandla v. Hargovind Jasraj & Anr. -(2013) 3 SCC 182
4. Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr. - (2004) 2 SCC 747
5. The Commissioner of Sales Tax, U.P. Lucknow v. M/s. Parson Tools and Plants, Kanpur -(1975) 4 SCC 22
6. N. C. Dhoundial v. Union of India & Ors. -(2004) 2 SCC 579
7. Graminee Environment Development Foundation v. Balaji Infrstructure Ltd. & Ors. -2017 SCC OnLine NGT 1098
8. Jai Javan Jai Kisan and Ors. v. Vidarbha Cricket Association and Ors. MANU/GT/0006/2017 [Application No. 33/2016 (M.A. Nos. 317/2016, 322/2016 and 355/2016)]
9. Surendra Waman Dhavale & Ors. v. Secretary, MoEF & Ors.- 2017 SCC Online NGT 1581
e) A perusal of all the citations would indicate that, by and large, they are dealing with the provisions of limitation Act alongwith some other provisions of the Civil Procedure Codes and other Acts, but it may be Page 61 of 63 mentioned here that the National Green Tribunal Act, 2010 being a special Act, the question for limitation would have to be dealt with as per the provisions made within this Act under Section 14-15 cited above and not under the limitation Act. Therefore, this Tribunal does not find it necessary to consider all these citations in the present Judgment. Therefore, both these issues are decided in favour of the Applicant against the Respondent No. 4.
f) After having made above analysis, we are of the view that the Application moved by the Applicant seeking relief of demolition needs to be rejected because we have already held that the necessity of Environmental Clearance as per Item 7(g) to the Schedule of EIA Notification, 2006 has been abolished by Notification dated 27.04.2022 and it has been found by the Tribunal that the same would be applicable retrospectively. Therefore, it cannot be held that the construction of the „Funicular Ropeway‟ system stands to be in violation of law. Accordingly, we do not deem it proper to order demolition of the same. However, we deem it just and proper to constitute a Committee comprising:
(i) The District Magistrate of the District Palghar,
(ii) One representative to be nominated by the State Pollution Control Board (SPCB),
(iii) One representative to be nominated by Central Pollution Control Board (CPCB) and
(iv) One representative to be nominated by State Environment Impact Assessment Authority (SEIAA) to monitor on six monthly basis (till two years) the operation of the „Funicular Ropeway‟ system at the site of Respondent No. 4 and to submit its report before Registrar of this Bench as to whether the terms & conditions as stipulated in O.M. dated 27.04.022 (referred in Page 62 of 63 page nos. 54-55), are being complied with or not by them. In case, any of the terms & conditions stipulated therein are found to have been violated, we direct that the Committee shall submit a report regarding that forthwith before the Registrar of this Tribunal. Further, it is directed that in case the Committee finds that any breach of directions stipulated in the said O.M. is being committed/or has been committed by the Respondent No. 4 or his men, an application seeking appropriate relief may be moved before this Tribunal.
g) The State Pollution Control Board (SPCB) will be the nodal agency for coordination and logistic support.
h) The report in the matter be filed by the Committee by e-mail at ngt-
[email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
i) Let a copy of this Judgment be transmitted to the District Magistrate, Palghar, State Pollution Control Board (SPCB), Central Pollution Control Board (CPCB) and State Environment Impact Assessment Authority (SEIAA) for compliance.
j) With the above findings and direction, this Application alongwith all connected I.A.s stand disposed of.
k) In terms of order, interim order stands vacated.
l) There shall be no order as to cost.
Dinesh Kumar Singh, JM
Dr. Vijay Kulkarni, EM
May 18, 2022
Original Application No.100/2020 (WZ)
(I.A. No. 138/2020, I.A. No. 42/2021 &
I.A. No. 31/2022)
P.kr & hkk
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