Judgement On Funicular

Last Date: 14-12-2021
1268
Currently Usted on: 28-02-2022
BEFORE HONOURABLE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
ORIGINAL APPLICATION NO. 100 OF 2020 (WZ)
BETWEEN
Udaysankara Samudrala Applicant
VERSUS
Union of India & Ors Respondents
INDEX
Sr. Particulars
r1 1
Memo of Additional Documents 1268-1271
~NEXURE-A 1273-1274
Draft Notification by MoEF&CC omitting to
. I delete entry 7(g) Aerial Ropeway
3 ANNEXURE - 8 1275-1279
Legal Opinion t o Respondent No. 4 from
• Dr Ajay Deshpande
[ • Adv Umesh D. Salvi
MOST RESPECTFULLY SHOWETH:
1. Respondent No.4 stat es t hat the above application is

pending before this Hon'ble Tribunal for expeditious final
adjudication when listed on 28/ 02/2022. There is
urgency in expeditious hearing and disposal of this matter
as a status-quo order dated 02/ 09/2021 passed .
•
2. ItIs causing hardship to
devotees/ month, by making them climbing-up and down
1500 steps that are handicapped, ladies, senior citizens
and children. The total number of devotees is
8,00,000/ year.
3. Applicant has already filed the Reply on 04.10.2021

and Written Arguments on 08-11-2021.
4. MoEFCC has NOW published the DBAFT Gazette

Notification on 02.02.2022 which has now proposed
deletion of the project/ activity under 7(g) Aerial
Ropeway. i.e. now there is no requirement of
'Environmental Clearance' even for the handling of cargo,
lose cargo like coal. Whereas the funicular ropeway is
only for the use of devotees. [ . Ax. A]
5. Respondent No.4 also took the Legal Opinion on

this entire issue from Advocate Umesh D. Salvi and Or Ajay
Deshpande. The same is enclosed for ready reference. [ . Ax.
B]
6. Respondent No.4 hereby prays for final adjudication

on grounds of maintainability, merit and vacating the status-quo
on the follow ing grounds, without prejudice to each other.
a) Construction or the project started In the

2017-18 and the project is already corn
and ready to operate from March 2020.
b) The application has to be filed within six mon1:h~~W~Ie

cause of action first arose; and not when it came to the
knowledge of the Petitioner. As per own admission of the
Petitioner on Page 616, in the Rejoinder to MoEFCC dated
07-05-2021, Applicant in the OA has stated that "The entire
work under the Funicular Ropeway mechanism ensued only in the
financial year 2011·18 and was carried on in the years 2018-19 and
l
2019-20. Between 01.10.2017 and
Rs.21,90,87,177!· was spent by respondent no. 4 in the construction
of the funicular ropeway project." There was no protection to
limitation under the guise and reason of Corona, during that
pre-pandemic period.
c) Hon'ble National Green Tribunal, Principal Bench, New Delhi

has already dismissed Original Application No. 55/2020
(WZ) along with I. A. Nos. 75/2020, 76/2020 and 77/2020
which was filed by DRIL on the same grounds vide its order
dated 09.09.2020.
d) Respondent No.4 was not served the copy of the Application

before the first hearing
e) The status-quo order was passed the first time without

hearing Respondent No.4.
f) "Funicular Ropeway" is not covered under the

project/activity which is specifically defined under 7(g) as
"Aerial Ropeway"
g) "Aerial Ropeway" is a state subject, forma lly governed by

the Bombay Aerial Ropeways Act 1955. Ropeway Advisory Board
of PWD Government of Maharashtra" has formally
communicated that "Funicular system does not fall under
the purview of this Act.
h) Funicular OR Aerial Ropeway activity, both, are NOT

covered under MPCB or CPCB's Categorization List of
Industries.
I)
j) This project/activity works on electricity, doesn't have
1271
noise, doesn't use any natural resources other than land .
k) Forest Department has already given the land, taken

compensation and afforestation also has been completed.
I) Operation of the project/activity is not likely to cause any

additional harm/damage/nuisance to the environment OR
pollution.
m) Applicant has already suggested and agreed to keep the

fees aside, subject to the final order.
7. The Applicant, therefore, humbly prays that the

pending application Is finally heard on the date
28/ 02/2022 which is already fixed by the Hon' ble
Tribunal, for hearing on all Issues including that on
limitation, malntainability and then if decided on merit,
without granting any adjournment, on any ground.
Place: Mumbai
Date: 23-02-2022 CIWRIWI
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4
Dr.Ajay A. Deshpande
Ph.D. IIT-Delhi, Ax. B ~ 6U1275
Qlf: ~ak;
Former Expert Member, National Green Tribunal Former Judge, Bombay High Court
A-26/403 Happy Valley, G.B .Road, Manpada, and
T hane (West)-40061 0, Maharashtra, INDIA National Green Tribunal
Mo bile: + 9 1-98 - 6944-0 15 7
Ema il: des h pa nd ea jay I @ gm a i I. eo m
Date:22n d February 2022

LEGAL OPINION
In the matter ofNGT OA 100/2020 (WZ) Udayasankara

Samudrala v/s Union of India & Ors.
I Refer;~ce: - rl ~NGT Record from Page No. Uo 1267 l
1 (MPCB Affidavit dated 13.12.2021 I
2. Draft Notification by MoEF&CC dated
---------~1 __0_2.02.202__2_____________________
1. We have perused all the records stated under reference

sent to us by the Trust; 'Shree Jivdani Devi Mandir Trust,
Virar' with the queries regarding the merits and dymerits
of the said application.
2. In our considered opinion the aforesaid app lication has no
merits to qualify it to sustain in the eyes of law. According
to the applicant, as disclosed from the text of the
application, the respondent Trust- 'Shree Jivdani Devi
Mandir Trust, Virar' started constructing 'funicular
ropeway' some three or four years back (vide- para no.6 of
the application) without obtaining EC as per
entry/category 7(g) 'Aerial Ropeway ' in the EIA
notification; and , therefore, the said construction needs to
be halted and removed. The applicant invoked section 14
of the National Green Tribunal Act, 201 0 claiming to raise
a " substantial question" relating to environment and
arising out of the impl~mentation of the en~~ T.C.
A-84, Shrirang Unit no.7 CHS Ltd., Near Shrirang Shopping Centre, Thane ('N): 400601
specified in Schedule I namely Environment Protection
1276
Act, 1986. The case of the applicant as pleaded must fail
mainly on two counts:
1) Limitation
2) Rigour of entry/ category 7(g) Aerial Ropeways not
being attracted to the present case
3. To justify the aforesaid premise we need to answer the
following questions
A. Whether the present matter is barred by limitation?
B. Whether ' fun icular ropeway' is covered under the
project/activity 7(g) "Aerial Ropeways" in the list of
projects or activities notified under EIA Notification
dated 14th September 2006?
A.WHETHER APPLICATION IS BARRED BY LIMITATION?
4. For any claim to be enforceable in law it has to pass the Test

of Limitation as prescribed by law. The claim of the applicant
arises out of the case pleaded by him ; and as such the plain and
simp le reading of the application furni shes to us the case of the
applicant. It is clearly seen both from the application as well as
the Rejoinder filed in response to the affidavit of MoEF&CC,
(vide contiguous Page No. 616) that the impugned work has
been started in the financial year 20 17-18. Section 14(3) of the
National Green Tribunal Act, 2010 requires the applicant to
move the application within a period of 6 months from the
date on the cause of action for such dispute first arose. In the
instant case the cause of action first arose when the work was
2
Dr.Aja y A. Des hpande
Ph.D. IIT-Delh i,
Former Expert Member, National Green Tri bunal.
1277
~ 621, YJF. (?/dui
Former Judge, Bombay High Court
and
National Green Tribunal
commenced some three to four years back, which is way before

the limitation period of six months. The application is, therefore,
squarely barred by limitation.
B . APPLI CABILITY OF EIA NOTI FICATION 14.09.20 06

TO FUNICULAR ROPEWAY PROJECT UNDER
PROJECT /ACTIVITY 7 (g) "AERIAL ROPEWAY"
5. The above EIA Notification has categorically mentioned and

described the project/activity under 7(g) in clear terms as
'Aerial Ropeway' . No other meaning ought to be gathered
from the language used to describe the said project/activity. It
cannot be dissected and read. Funicular Ropeway is nbt the
sub-category embedded under the generic category 'Aerial
Ropeway~ The nature of both is also substantively different.
'Funicular ' systen1 as a tern1 is understood as '·a type of
Cable System, which connects points along a Railway track
laid on a steep slope. The systen1 is characterized by two
counterbalanced carriages permanently attached to opposite
ends of a haulage cable, which is looped over a pulley at the
upper end of the track. The result o.f such a configuration is
that the two carriages move synchronously as one ascends,
the other descends at an equal speed''
Thus, there is use of a rope to pull or release the carriages
uphill or downhill synchronously i. e. in conjunction at the
3 ~·
1278
same time on rails resting essentially on Land - an Railway
powered by gravitational pull, wherein rope is a controlling
medium.
In contrast with this System is Aerial Rope way, which consists
of a carriage held on/hanging in air on Rope and, therefore, its
move1nent is powered by as well as controlled by/on the rope in
Air; and, thus, is in true sense a Ropeway, and not a Railway.
6. This has been also clarified by the State Advisory Board of

PWD under the Bombay Aerial Ropeways Act, 1955. The Trust
as and by way of abundant caution had voluntarily applied to
MoEF&CC for 'Environmental Clearance' under the category
7(g) ' Aerial Ropeway'. This fact has been recorded in the
Minutes of Meeting of the EAC-MoEF&CC. Currently, the
project has been delisted. Be it so as it may be, this de-facto
doesn't change the nature of the project/activity which is a
funicular ropeway. It is laid down on tracks on land and
nowhere passing in the aerial space. It is merely pulled by a rope
driven by an electrical motor. Considering all these facts, it still
doesn't become the 'Aerial Ropeway' as contemplated under
7(g). The affidavit from MoEF&CC is not speaking clearly
about the inclusion of this category. However, the current draft
Notification dated 02.02.2022 has clearly proposed to omit this
7(g) 'Aerial Ropeway' altogether. This clearly spea~he intent
of the MoEF&CC.
7. In view of the above, the Application would certainly fail on

limitation as well as on merit, after bringing all the facts to the
4
Dr.Ajay A. Deshpande
Pb.D . IIT-Delhi,
Former Expert Member, National Green Tribunal.
1279
Former Judge, Bombay High Court
and
National Green Tribunal
notice of Hon ' ble Tribunal, as has been extensively pleaded in
Affidavit in reply dated 04/ 10/2021 and Writtep_ Arguments
08/ 11/2021. The Trust may apply for the expeditious final
hearing itself OR at least vacating the status-quo, considering
the p aucity of time for the quality hearing.
Signed and issued to the Trust on 22nd February 2022.
~·
(Dr. Aj ay Deshpande) (Justice U.D. Salvi)
A-84, Shrirang Unit no.7 CHS Ltd., Near Shrirang Shopping Centre, Thane (W)- 400601
T.C.

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Last Date: 14-12-2021

ORIGINAL APPLICATION NO. 100 OF 2020 (WZ)

MOST RESPECTFULLY SHOWETH:

1. Respondent No.4 stat es t hat the above application is

3. Applicant has already filed the Reply on 04.10.2021

4. MoEFCC has NOW published the DBAFT Gazette

5. Respondent No.4 also took the Legal Opinion on

6. Respondent No.4 hereby prays for final adjudication

a) Construction or the project started In the

b) The application has to be filed within six mon1:h~~W~Ie

c) Hon'ble National Green Tribunal, Principal Bench, New Delhi

d) Respondent No.4 was not served the copy of the Application

e) The status-quo order was passed the first time without

f) "Funicular Ropeway" is not covered under the

g) "Aerial Ropeway" is a state subject, forma lly governed by

h) Funicular OR Aerial Ropeway activity, both, are NOT

k) Forest Department has already given the land, taken

I) Operation of the project/activity is not likely to cause any

m) Applicant has already suggested and agreed to keep the

7. The Applicant, therefore, humbly prays that the

Date:22n d February 2022

In the matter ofNGT OA 100/2020 (WZ) Udayasankara

1. We have perused all the records stated under reference

A.WHETHER APPLICATION IS BARRED BY LIMITATION?

4. For any claim to be enforceable in law it has to pass the Test

commenced some three to four years back, which is way before

B . APPLI CABILITY OF EIA NOTI FICATION 14.09.20 06

5. The above EIA Notification has categorically mentioned and

6. This has been also clarified by the State Advisory Board of

7. In view of the above, the Application would certainly fail on

Signed and issued to the Trust on 22nd February 2022.

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