The NGT has made sweeping observations which are unjustified and without any basis - in fact and in law.
1. For instance, the NGT has observed that the foundation had obstructed the committee from inspection. This is incorrect. The committee, as evidenced in a letter dated 1 April 2016, was supposed to inspect after the site was handed over by the foundation to DDA. Since the site was in the possession of the foundation and the clearing process was in progress, the committee was not obstructed but was requested to come for inspection after the site was handed over. This was perfectly in accordance with the arrangement stated in the letter dated 1 April 2016 and therefore the NGT has fallen in error in concluding that the committee was obstructed.
2. Another instance where the NGT, has gone completely wrong is: that the foundation has caused irreparable harm to the flood plains. This is entirely erroneous. First, floodplains have not even been demarcated in accordance with law. Second, the alleged impact and alleged damage has not been scientifically ascertained or measured. The reports of the committee (given in one day) are flawed - the requisite procedure has not been followed. The foundation had therefore asked for an independent assessment according to settled scientific norms - which prayer has not even been considered by the NGT. The judgment of the NGT IS also inconsistent.
3. Further, the NGT has wrongly concluded that the undertaking was given without an intention to fulfill it. This conclusion is totally perverse. The undertaking read with the order dated 11 March 2016 gave the foundation time till 1 April 2016. Before the time period expired the foundation filed an application on 31 March 2016 for permission to furnish the bank guarantee. The foundation or any litigant has the right to apply for modification of an order against it. It was this right which was exercised by the foundation. Significantly, this application was not dismissed summarily, but, notice was issued on this application and full drawn arguments were advanced. On 22 April 2016, judgment on this application was reserved. Surely, the foundation was well within its rights to await the outcome of the decision - which was pronounced only yesterday i.e. 31 May 2016. There is therefore no factual basis to conclude that the foundation had no intention to honor the undertaking or that the foundation has flouted the orders of the NGT.
The NGT has unfortunately not appreciated the enormous work done by the foundation globally in general and nationwide in particular. The foundation is a renowned environmentalist and has in fact pioneered the clean Yamuna campaign. The foundation is a law abiding organization. The NGT has erred in treating the foundation like a habitual defaulter.
