National Green Tribunal
Tanaji Balasaheb Gambhiretanaji ... vs Union Of India Through Secretary Moef & ... on 23 February, 2023
Item No. 2 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Original Application No. 38/2020(WZ)
I.A. No. 48/2020(WZ)
Tanaji B. Gambhire
.....Applicant
Versus
Union of India & Ors.
....Respondent(s)
Date of hearing: 23.02.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Applicant in-person along-with Mr. Vijay Mhaske, Advocate
Respondent(s) : Mr. Rahul Garg, Advocate for R-1/MoEF&CC &
R-9 & 10/PMC
Mr. Aniruddha Kulkarni, Advocate for R-3/Envt. Deptt. &
R-4/SEIAA & R-5/SEAC-III
Ms. Manasi Joshi, Advocate for R-6 & 7/MPCB
Mr. R. B. Mahabal along-with Mr. Sachin S. Gore,
Advocates for R-12/PP
ORDER
1. As per our previous order dated 12.01.2023, we have to hear this matter only on the preliminary issue of limitation. There is no separate application filed from the side of Respondent No. 12/Project Proponent in respect of rejecting the present application on the ground of being barred by limitation but in the counter affidavit dated 07.01.2023 filed by the Respondent No. 12/Project Proponent, which is annexed at page nos. 332 to 379 of the paper book, in para no. 6, it is stated that the first Environmental Clearance was granted to the Answering Respondent on 25.06.2007. The construction was completed as per the sanctioned plans, including the parking floors in the year 2009, which included basement parking floors of an area of 12,110 m2. The date on which the cause of Page 1 of 12 action first arose is 09.09.2009, when the 1st part of the Completion Certificate of PMC was given and from that date, there is 3953 days delay in filing the present Original Application i.e. on 06.07.2020.
2. From the side of Applicant, it is mentioned in relevant para no. 30 sub-clause (b) of the Original Application that the present application has been filed raising substantial questions relating to environment and this application is filed within five years from the cause of action first arose on 17.12.2019, when the Project Proponent procured the Consent to Establish and initiated construction for expansion. The present application is filed within six months from 17.12.2019 (excluding the period from 23.03.2020 to 08.06.2020 of Lockdown due to COVID-19, which is exempted by the Hon'ble Supreme Court of India).
3. Heard the arguments of the learned Counsel for the Applicant as well as learned Counsel for the Respondent No. 12/Project Proponent.
4. The learned Counsel for the Respondent No. 12 has argued that the land was purchased for the project in question in the year 2005 and the building plan was got sanctioned from the PMC on 12.07.2006, which was prior to come into force of EIA Notification dated 14.09.2006.
Therefore, no area was required to be considered while granting the EC because the said provision came into force only after 14.09.2006. The Project Proponent has been granted EC under the EIA Notification, 2004, which provided that if footfall exceeded 1000 persons or it exceeded effluent of 50 cubic meters per day or the investment exceeded Rs. 50 crores, the EC would be required. The Project Proponent did not raise any construction between the period from the year 2009 to 2019. As on 20.09.2019, the EC for expansion was granted for the project in question (commercial project). The Applicant could not have challenged the earlier Page 2 of 12 constructions/work done by the Project Proponent, which was completed prior to 17.12.2019. It is further argued by him that the part of the project, which was completed earlier i.e. Building A, B, C & D of the residential projects, were handed over and the residents have also formed their association. He has also drawn our attention to the definition provided under Section 2 (d) of the Water (Prevention and Control of Pollution) Act, 1974, which says as follows:-
" "occupier", in relation to any factory or premises, means the person who has control over the affairs of the factory or the premises, and includes, in relation to any substance, the person in possession of the substance;"
5. Therefore, it is argued by the learned Counsel for the Respondent No. 12/Project Proponent that since the building has been handed over to the occupants and it was the responsibility of the occupiers to operate the STP and OWC etc. and that it was no longer the burden of the Project Proponent/Developer.
6. Thereafter, the learned Counsel for the Respondent No. 12/Project Proponent has drawn our attention to page no. 419 of the paper book, which is a Judgment dated 03.10.2012 passed by the Principal Bench of this Tribunal in Appeal No. 37 of 2012 (Real Gem Buildtech Pvt. Ltd. vs. State of Maharashtra) and reliance is placed at para no. 5 of the said Judgment, which is quoted herein below:-
"Upon hearing learned Counsel for the parties, it is amply clear that the impugned order does not reflect as to whether rejection of the EC for three basements was done on ground of any adverse environmental impact. In fact, we find that no environmental issue is involved in the matter. The material on record does not show that the third basement is likely to cause any serious impact on the environment. The Counsel for the respondent submits that the question of proper muck disposal, the disposal of debris and the disposal of earth excavation from the building and basement is also required to be considered. He submits that proper disposal of such waste material has to be ensured from the appellant. He further submits that if the third basement has been constructed without the EC then the Page 3 of 12 appellant is liable for appropriate penalty under Section 15 of The Environment (Protection) Act, 1986."
7. Having relying upon the above ruling, it is argued that in the present case as well, no environmental issue is involved. Thereafter, he has drawn our attention to page no. 610 of the paper book, which is a Judgment dated 10.02.2022 delivered by the Tribunal in Original Application No. 31/2020 (WZ) (Shashikant Kamble vs. M/s. Embassy Property Developers Pvt. Ltd.), where-in in part no. 5, following is held:
"The PP has filed a reply inter alia raising the plea of limitation. It is submitted that no part of cause of action has arisen within five years prior to filing of the OA. No continued violation pointed out. Thus, the Tribunal cannot entertain the application beyond statutory limitation."
8. We do not find the facts of this case narrated in this Original Application, therefore, we cannot compare the facts in the present case with the facts of Original Application No. 31/2022 and hence, under what circumstances, it was held by the Tribunal that the application was beyond statutory limitation, cannot be appreciated by us.
9. Much emphasis was laid down by the Respondent No. 12/Project Proponent that the present project is a different one than the project, which has already been completed earlier i.e. Building A, B, C & D on the ground that the buildings which were permitted to be constructed in accordance with the DCR of the year 1989, under that full utilization had been made of the Floor Space Index (FSI). The present project is allowed under DCR of 2015, which has given additional FSI, which could not have been done earlier. Therefore, the two projects should be treated to be separate and not one. Hence, present application deserves to be dismissed being time barred.
10. On the other hand, learned Counsel for the Applicant has drawn our attention to page no. 279 of the paper book, where-in the Applicant Page 4 of 12 has challenged the Consent to Establish and Consent to Operate and the present petition has been filed under Section 15 of the National Green Tribunal Act, 2010. He has drawn our attention to page no. 282 of the paper book, where-in following is held by the Joint Committee:-
"It is observed that after handing over of the said completed project, PP has renewed CTO from time to time (with gaps of few years) till dated 31/12/2016, as per condition no. 2 (III) of CTO granted on 02/08/2010 by MPCB i.e. "The project proponent shall operate STP for five years from the date of Occupation certificate". However, the joint committee opined that though the PP has made "Deed of Declaration" and mentioned that necessary renewals shall be done by the office bearers/elected committee members. However, the project proponent name, various licenses & clearances (viz. environmental clearance, CTO etc.) in the name of M/s Paranjape Schemes (Construction) Ltd., Pune have not yet been transferred in the name of "Magnolia Apartments". Also, presently (as per expansion EC dated 20/09/2019), the PP is utilizing additional FSI of whole plot area and for which the PP has applied for CTE to MPCB on 17/12/2019 for expansion of residential & commercial project of total plot area of 17,400 sq-m for total proposed built-up area of 35,966.35 sq-m (FSI: 24,274.35 sq.m & Non-FSI: 11,692 sq.m). Hence, the earlier project including the expanded project may be treated in a holistic manner rather treating as a separate component."
11. Having drawn our attention to the above, it is argued that the Joint Committee itself has recommended that the expanded project be treated in holistic manner rather than be treated as a separate component.
Thereafter, our attention is drawn to page no. 382 of the paper book, which is the Sanction Plan of the project and it is indicated by him that in this plan, the area which is shown as podium level, is forming part of the original plan, which is said to have been completed earlier i.e. Building A, B, C & D and that above podium, now fresh construction is being made, which should be treated to be one project as a whole, rather than a different project. Besides that, it is further argued by him that at Page 5 of 12 page no. 279 of the paper book, it is recorded in the Joint Committee report that BOD and COD were found to be exceeding the prescribed discharge standards, which clearly indicated of the fact that the STP was not in operation. It is further pointed out by him that he has challenged all the violations, which are narrated by him in the application, which pertain to Consent to Establish and Consent to Operate and it is apparent that there were gaps in obtaining the Consent to Operate by the Project Proponent. Therefore, in the light of the law laid down in The Forward Foundation & Others vs. State of Karnataka & Others, this should be treated to be the recurring cause of action and should not be treated to be time barred. The relevant portion of the said case law is reproduced here-in below for the sake of convenience:-
"24. For a dispute to culminate into a cause of action, actionable under Section 14 of the NGT Act, 2010, it has to be a 'composite cause of action' meaning that, it must combine all the ingredients spelled out under Section 14(1) and (2) of the NGT Act, 2010. It must satisfy all the legal requirements i.e. there must be a dispute. There should be a substantial question relating to environment or enforcement of any legal right relating to environment and such question should arise out of the implementation of the enactments specified in Schedule I. Action before the Tribunal must be taken within the prescribed period of limitation triggering from the date when all such ingredients are satisfied along with other legal requirements. Accrual of 'cause of action' as afore-stated would have to be considered as to when it first arose.
25. In contradistinction to 'cause of action first arose', there could be 'continuing cause of action', 'recurring cause of action' or 'successive cause of action'. These diverse connotations with reference to cause of action are not synonymous. They certainly have a distinct and different meaning in law, 'Cause of action first arose' would refer to a definite point of time when requisite ingredients constituting that 'cause of action' were complete, providing applicant right to invoke the jurisdiction of the Court or the Tribunal. The 'Right to Sue' or 'right to take action' would be subsequent to an accrual of such right. The concept of continuing wrong which would be the foundation of continuous cause of action has been accepted by the Hon'ble Supreme Court in the case of Bal Krishna Savalram Pujari & Ors. v. Sh. Dayaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798.Page 6 of 12
26. In the case of State of Bihar v. Deokaran Nenshi and Anr., (1972) 2 SCC 890, Hon'ble Supreme Court was dealing with the provisions of Section 66 and 79 of the Mines Act, 1952. These provisions prescribed for a penalty to be imposed upon guilty, but provided that no Court shall take cognizance of an offence under Act unless a complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. The Explanation to the provision specifically provided that if the offence in question is a continuing offence, the period of limitation shall be computed with reference to every point of time during which the said offence continues. The Hon'ble Supreme Court held as under:
"5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."
27. Whenever a wrong or offence is committed and ingredients are satisfied and repeated, it evidently would be a case of 'continuing wrong or offence'. For instance, using the factory without registration and licence was an offence committed every time the premises were used as a factory. The Hon'ble Supreme Court in the case of Maya Rani Punj v. Commissioner of Income Tax, Delhi, (1986) 1 SCC 445, was considering, if not filing return within prescribed time and without reasonable cause, was a continuing wrong or not, the Court held that continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as long as the default continued. The penalty is imposable as long as the default continues and as long as the assesse does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law. Hon'ble High Court of Delhi in the case of Mahavir Spinning Mills Ltd. v. Hb Leasing And Finances Co. Ltd., 199 (2013) DLT 227, while explaining Section 22 of the Limitation Act took the view that in the case of a continuing breach, or of a continuing tort, a fresh period of limitation begins to run at every moment of Page 7 of 12 time during which the breach or the tort, as the case may be, continues. Therefore, continuing the breach, act or wrong would culminate into the 'continuing cause of action' once all the ingredients are satisfied. Continuing cause of action thus, becomes relevant for even the determination of period of limitation with reference to the facts and circumstances of a given case. The very essence of continuous cause of action is continuing source of injury which renders the doer of the act responsible and liable for consequence in law.
Thus, the expressions 'cause of action first arose', 'continuing cause of action' and 'recurring cause of action' are well accepted cannons of civil jurisprudence but they have to be understood and applied with reference to the facts and circumstances of a given case. It is not possible to lay down with absolute certainty or exactitude, their definitions or limitations. They would have to be construed with reference to the facts and circumstances of a given case. These are generic concepts of civil law which are to be applied with acceptable variations in law. In light of the above discussed position of law, we may revert to the facts of the case in hand.
28. The settled position of law is that in law of limitation, it is only the injury alone that is relevant and not the consequences of the injury. If the wrongful act causes the injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. In other words distinction must be made between continuance of legal injury and the continuance of its injurious effects. Where a wrongful act produces a state of affairs, every moment continuance of which is a new tort, a fresh cause of action for continuance lies. Wherever a suit is based on multiple cause of action, period of limitation will began to run from the date when the right to sue first accrues and successive violation of the right may not give rise to a fresh cause of action. [Ref: Khatri Hotels Private Limited and Anr. v. Union of India (UOI) and Anr., (2011) 9 SCC 126, Bal Krishna Savalram Pujari & Ors. v. Sh. Dayaneshwar Maharaj Sansthan & Ors, AIR 1959 SC 798, G.C. Sharma v. Municipal Corporation of Delhi, (1979) ILR 2 Delhi 771, Kuchibotha Kanakamma and Anr. v Tadepalli Ptanga Rao and Ors., AIR 1957 AP 419].
29. A cause of action which is complete in all respects gives the applicant a right to sue. An applicant has a right to bring an action upon a single cause of action while claiming different reliefs. Rule 14 of the National Green Tribunal (Practise and Procedure) Rules, 2011, shows the clear intent of the framers of the Rules that multiple reliefs can be claimed in an application provided they are consequential to one another and are based upon a single cause of action. Different causes of action, thus, may result in institution of different applications and therefore, there is exclusion of the concept of the 'joinder of causes of action' under the Rules of 2011. The multiple cause of action again would be of two kinds. One, which arise simultaneously and other, which arise at a different or successive point of time.
Page 8 of 12In first kind, cause of action accrues at the time of completion of the wrong or injury. In latter, it may give rise to cause of action or if the statutes so provide when the 'cause of action first arose' even if the wrong was repeated. Where the injury or wrong is complete at different times and may be of similar and different nature, then every subsequent wrong depending upon the facts of the case may gives rise to a fresh cause of action. To this general rule, there could be exceptions. In particular such exceptions could be carved out by the legislature itself. In a statute, where framers of law use the phraseology like 'cause of action first arose' in contradistinction to 'cause of action' simplicitor. Accrual of right to sue means accrual of cause of action for suit. The expressions 'when right to sue first arose' or 'cause of action first arose' connotes date when right to sue first accrued, although cause of action may have arisen even on subsequent occasions. Such expressions are noticed in Articles 58 of the Limitation Act, 1963. We may illustrate this by giving an example with regard to the laws that we are dealing here. When an order granting or refusing Environmental Clearance is passed, right to bring an action accrues in favour of an aggrieved person. An aggrieved person may not challenge the order granting Environmental Clearance, however, if on subsequent event there is a breach or non-implementation of the terms and conditions of the Environmental Clearance order, it would give right to bring a fresh action and would be a complete and composite recurring cause of action providing a fresh period of limitation. It is also for the reason that the cause of action accruing from the breach of the conditions of the consent order is no way dependent upon the initial grant or refusal of the consent. Such an event would be a complete cause of action in itself giving rise to fresh right to sue. Thus, where the legislature specifically requires the action to be brought within the prescribed period of limitation computed from the date when the cause of action 'first arose', it would by necessary implication exclude the extension of limitation or fresh limitation being counted from every continuing wrong, so far, it relates to the same wrong or breach and necessarily not a recurring cause of action.
30. Now, we would deal with the concept of recurring cause of action. The word 'recurring' means, something happening again and again and not that which occurs only once. Such reoccurrence could be frequent or periodical. The recurring wrong could have new elements in addition to or in substitution of the first wrong or when 'cause of action first arose'. It could even have the same features but its reoccurrence is complete and composite. The recurring cause of action would not stand excluded by the expression 'cause of action first arose'. In some situation, it could even be a complete, distinct cause of action hardly having nexus to the first breach or wrong, thus, not inviting the implicit consequences of the expression 'cause of action first arose'. The Supreme Court clarified the distinction between continuing and recurring cause of action with some Page 9 of 12 finesse in the case of M. R. Gupta v. Union of India and others, (1995) 5 SCC 628, the Court held that:
"The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that it the appellant's claim is found correct on merits. He would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.
The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Ors. v. Mattapalli, Raju and Ors. AIR (1950) F C1."
31. The Continuing cause of action would refer to the same act or transaction or series of such acts or Page 10 of 12 transactions. The recurring cause of action would have an element of fresh cause which by itself would provide the applicant the right to sue. It may have even be de hors the first cause of action or the first wrong by which the right to sue accrues. Commission of breach or infringement may give recurring and fresh cause of action with each of such infringement like infringement of a trademark. Every rejection of a right in law could be termed as a recurring cause of action. [Ref: Ex. Sep. Roop Singh v. Union of India and Ors., 2006 (91) DRJ 324, M/s. Bengal Waterproof Limited v. M/s. Bombay Waterproof Manufacturing Company and Another, (1997) 1 SCC 99].
32. The principle that emerges from the above discussion is that the 'cause of action' satisfying the ingredients for an action which might arise subsequently to an earlier event give result in accrual of fresh right to sue and hence reckoning of fresh period of limitation. A recurring or continuous cause of action may give rise to a fresh cause of action resulting in fresh accrual of right to sue. In such cases, a subsequent wrong or injury would be independent of the first wrong or injury and a subsequent, composite and complete cause of action would not be hit by the expression 'cause of action first arose' as it is independent accrual of right to sue. In other words, a recurring cause of action is a distinct and completed occurrence made of a fact or blend of composite facts giving rise to a fresh legal injury, fresh right to sue and triggering a fresh lease of limitation. It would not materially alter the character of the preposition that it has a reference to an event which had occurred earlier and was a complete cause of action in itself. In that sense, recurring cause of action which is complete in itself and satisfies the requisite ingredients would trigger a fresh period of limitation. To such composite and complete cause of action that has arisen subsequently, the phraseology of the 'cause of action first arose' would not effect in computing the period of limitation. The concept of cause of action first arose must essentially relate to the same event or series of events which have a direct linkage and arise from the same event. To put it simply, it would be act or series of acts which arise from the same event, may be at different stages. This expression would not de bar a composite and complete cause of action that has arisen subsequently. To illustratively demonstrate, we may refer to the challenge to the grant of Environmental Clearance. When an appellant challenges the grant of Environmental Clearance, it cannot challenge its legality at one stage and its impacts at a subsequent stage. But, if the order granting Environmental Clearance is amended at a subsequent stage, then the appellant can challenge the subsequent amendments at a later stage, it being a complete and composite cause of action that has subsequently arisen and would not be hit by the concept of cause of action first arose."
Page 11 of 1212. After having heard the rival contentions, we are of the view that in view of the recommendations made by the Joint Committee, the present project is nothing but an expansion of the earlier project and should be treated in holistic manner. We are of the view that the date which has been mentioned by the Applicant i.e. 17.12.2019 for expansion when the Consent to Establish of the said project was allowed, can be said to be a valid date for calculating of the period of limitation and since this Application has been filed under Section 15 of the National Green Tribunal Act, 2010, which provides 5 years period + 60 days at the discretion of the Tribunal on being shown satisfactory ground for the delay, we find that taking into consideration the recurring cause of action, the principle of which has been laid down by this Tribunal in Forward Foundation v. State of Karnataka case (supra), this application is not found to be time barred. This issue is decided accordingly.
Put up this matter on 24.04.2023
13. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM February 23, 2023 Original Application No. 38/2020(WZ) I.A. No. 48/2020(WZ) P.Kr Page 12 of 12