Gujarat High Court
Kheti Vikas Seva Trust Through Its ... vs State Of Gujarat & 6 on 9 July, 2015
Bench: M.R. Shah, G.R.Udhwani
C/CA/9124/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR DIRECTION) NO. 9124 of 2011
In WRIT PETITION (PIL) NO. 12 of 2011
=============================================
KHETI VIKAS SEVA TRUST THROUGH ITS OFFICE BEARERS NARAN &
2....Applicant(s)
Versus
STATE OF GUJARAT & 6....Respondent(s)
=============================================
Appearance:
MR SIRAJ R GORI, ADVOCATE for the Applicant(s) No. 1 3
APPEARANCE DELETED for the Respondent(s) No. 2
DS AFF.NOT FILED (N) for the Respondent(s) No. 3 , 6 7
MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL with MR UTKARSH SHARMA, AGP for
the Respondent(s) No. 1
MR RAKESH GUPTA, ADVOCATE for M/S TRIVEDI & GUPTA, ADVOCATE for the Respondent
No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 1
MR MIHIR THAKORE, SR. ADVOCATE with MR RS SANJANWALA, SR. ADVOCATE with MR
SANDEEP SINGHI for SINGHI & CO, ADVOCATE for the Respondent(s) No. 5
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 09/07/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Present application has been preferred by the applicant herein - original petitioner of Writ Petition (PIL) No.12/2011 requesting to initiate appropriate proceedings under the Contempt of Courts Act against the officers/Directors/concerned officers of the respondent Nos.4 and 5 herein for having committed the deliberate and willful disobedience and breach of the order dated 12.07.2011 passed by the Division Bench of this Court in aforesaid Writ Petition (PIL) No.12/2011.
[2.0] It is the case on behalf of the applicant herein - original petitioner that in the order dated 12.07.2011 the Division Bench of this Court specifically directed the respondent Companies as well as developer or industries not to cut mangrove trees without Page 1 of 7 C/CA/9124/2011 ORDER permission from the competent authorities. It is alleged that despite the aforesaid direction, in gross violation of the directions contained in the order dated 12.07.2011 passed by this Court, the respondent Companies have continued their operations of cutting / destructing thick cover of mangrove forest existing in Mundra Taluka of District Kutch. It is further alleged that with a view to overreach the process of the law and flout the directions contained in the order dated 12.07.2011 passed by this Court, the respondent Companies through their common management have started adopting a different modus operandi for removing the thick cover of mangrove forests. It is alleged that at different places in Mundra region, the respondent Companies have buried the live mangrove trees by creating a big layer of dredged material from the sea.
[3.0] On the other hand, it is the case on behalf of the respondent Companies that there is no violation of any of the directions issued by the Division Bench in the order dated 12.07.2011. It is also the case on behalf of the respondent management that the respondent Companies have grown / cultivated number of mangrove trees and no attempts whatsoever have been made to destroy the mangrove trees as alleged.
[4.0] It is required to be noted that the Division Bench of this Court (Coram: Jayant Patel & R.M. Chhaya, JJ.) vide order dated 19.09.2011 after hearing the learned advocates appearing for respective parties passed an order to appoint a committee comprising of (1) District Collector, District Kutch and (2) District Superintendent of Police and the officer who have been nominated by the Ministry of Environment and Forests, Union of India and directed them to visit the place in question and to report this Court about whether any mangrove trees or any connected forest Page 2 of 7 C/CA/9124/2011 ORDER therewith has been cut or buried by any agents, servants or officers of opponent Nos.4 and 5 on their behalf.
At this stage it is required to be noted that while issuing the notice in the present application and appointing the committee as above, the Division Bench also observed that "it prima facie appears that whether the breach has been made of the order dated 12.07.2011 passed by this Court in Writ Petition (PIL) No.12 of 2011 and allied matters and more particularly the directions issued at Paragraph No.6 or not has to come on record by an evidence or otherwise. Further, in any case for future effect the order has to be complied with".
[4.1] It appears that thereafter the Committee submitted its report as directed by this Court earlier. The same came to be considered by the Division Bench on 20.10.2011. The Division Bench noted that "it prima facie appears that there are breaches of the order and more particularly in site No.5". Observing above, thereafter the Division Bench directed that till further orders there shall not be any development on the south port areas in the peripheral limits of 300 meters from the boundaries of the seashore as shown in the map of Waterfront Development, Mundra. The Division Bench also further specifically directed that the development, even on the other areas, shall not be in such a manner, which results into blockage of inflow of water in any creek in the peripheral areas of north and south ports. That thereafter the aforesaid order came to be modified to some extent by order dated 10.11.2011 and thereafter there is no further progress in the matter and thereafter it has come before this Court.
[5.0] Having heard learned advocates appearing for respective parties, we are of the opinion that even for future implementation Page 3 of 7 C/CA/9124/2011 ORDER of the order passed by this Court and even to know whether there was any breach of the order passed by this Court and/or whether there was any attempt on the part of any of the respondents and/or any of the authorities to overreach the Court's process and/or to overreach the directions issued by this Court passed in Writ Petition (PIL) No.12/2011 and even if some further steps are required to be taken to protect the mangrove trees and the environment at the seashore, let there be a videography and photography of the entire area in question by an absolutely independent authority. We are of the opinion that to avoid any further allegations and/or counter allegations against any of the authorities, let the videography and photography be done/conducted through/by and/or under the supervision of the learned Principal District Judge, Kutch. Shri Mihir Thakore, learned Senior Advocate as well as Shri R.S. Sanjanwala, learned Senior Advocate appearing for respective respondents and Shri Prakash K. Jani, learned Additional Advocate General appearing for State authorities and Shri Gori, learned advocate appearing for the applicant herein has stated at the Bar that they/their respective clients have no objection if the videography/photography of the area in question is done and/or permitted to be done by and/or under the supervision of the learned Principal District Judge, Kutch, however learned Senior Advocates appearing for respective respondents have stated that the same shall be without prejudice to the rights and contentions of the respective respondents that none of the private respondents have committed any breach and/or disobedience of the directions issued by this Court vide order dated 12.07.2011 in Writ Petition (PIL) No.12/2011. Learned advocates appearing for respective parties have also requested that at the time of videography/photography, one of the representative may be permitted to accompany the learned Principal District Judge, Kutch, Page 4 of 7 C/CA/9124/2011 ORDER however that shall be only for the purpose of pointing the places for videography/photography, if required. Shri Gori, learned advocate appearing on behalf of the applicant herein has stated that Shri Naran Bharu Gadhvi may be permitted to remain present at the time of videography and photography. Shri Thakore, learned Counsel appearing for the contesting respondents has stated that on behalf of their clients, one Shri Mukesh Saxena, Vice President, Special Economic Zone may be permitted to remain present at the time of videography/photography.
[6.0] In view of the above and the broad consensus recorded hereinabove and with the consent of learned advocates appearing for respective parties, the following order is passed.
(1) The learned Principal District Judge, Kutch to have the videography/photography of the Special Economic Zone, Mundra; entire seashore in the Mundra Taluka including the area of respective creeks more particularly Koyla Creek and Navina Creek with respect to mangrove trees existed in past and/or existing at present.
(2) At the time of videography/photography it will be open for one Shri Naran Bharu Gadhvi (on behalf of the applicant) and one Shri Mukesh Saxena, Vice President, Special Economic Zone (on behalf of the respondent Companies and as suggested by Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the Special Economic Zone) to remain present at the time of videography / photography by the learned Principal District Judge, Kutch. The time and place shall be ascertained by them in consultation with the learned Page 5 of 7 C/CA/9124/2011 ORDER Principal District Judge, Kutch in advance. However, they shall not be permitted to do any videography / photography at that time.
(3) As suggested by Shri Prakash K. Jani, learned Additional Advocate General appearing for the State and as agreed by learned advocates appearing on behalf of respective parties, Shri Bhavin Vyas, Deputy Conservator of Forests, who is personally present in the Court shall also assist the learned Principal District Judge, Kutch to have the videography / photography with sufficient required staff.
(4) The Collector, Kutch is directed to give full facilities to the learned Principal District Judge, Kutch for the purpose of videography/photography. It will be open for the learned Principal District Judge to manage for the required instruments, cameras and the manpower for aforesaid exercise and expenses for the same shall be initially borne by the Collector, Kutch.
(5) The Dy.S.P., Kutch is also directed to provide sufficient security to the learned Principal District Judge, Kutch at the time of videography / photography.
(6) The learned Principal District Judge, Kutch to submit the report along with CDs and photographs (including photographs in the CD also) on or before 27.07.2015. In the report the learned Principal District Judge, Kutch to mention the areas of which the videography is done and photographs are taken so that specific places can be identified.
Page 6 of 7 C/CA/9124/2011 ORDERThe entire aforesaid exercise shall be completed by the learned Principal District Judge, Kutch on or before 27.07.2015. However, it is observed that the aforesaid shall be without prejudice to the rights and contentions of the respective parties in the main application and without expressing anything with respect to allegations and counter allegations in the present application and the present order is passed for the purposes mentioned in the earlier part of the order. Stand over to 28.07.2015.
(M.R. SHAH, J.) (G.R. UDHWANI, J.) Ajay Page 7 of 7