Gujarat High Court
Adam B Chaki vs Union Of India & on 4 October, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
ADAM B CHAKI....Applicant(s)V/SUNION OF INDIA C/WPPIL/51/2012 CAV JUDGEMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 51 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
================================================================ ADAM B CHAKI....Applicant(s) Versus UNION OF INDIA &
5....Opponent(s) ================================================================ Appearance:
MR HASHIM QURESHI with MR EKRAMA QURESHI, ADVOCATE for the Applicant(s) No. 1 MR PK JANI, GOVERNMENT PLEADER with MS VACHA DESAI, AGP for the Opponent(s) No. 4 - 5 MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 1 - 2 NOTICE SERVED for the Opponent(s) No. 1 - 3 MR MIHIR JOSHI, SR.ADVOCATE with MR SANDIP SINGHI for SINGHI & CO, ADVOCATE for the Opponent(s) No. 6 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 4/10/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By this writ-application in the nature of a public interest litigation, the petitioner, claiming to be a social activist, has prayed for the following relief :
(A) This Hon'ble Court be pleased to admit and allow this petition and issue a writ in the nature of mandamus or any other appropriate writ, quashing and setting aside resolution at Annexure-'N' and 'O' dated 28.12.07 and 29.2.08 respectively as the same are passed in defiance of due process of law and suffers from gross illegality and irregularity.
(B) Be pleased to direct the respondents to place before this Hon'ble Court the report showing that the respondent no.6 has obtained all the necessary permission to start the unit particularly the permission of Board of Radiological Isotopes and Technology (BRIT) as well as the necessary final permission from the respondent no.5 and other concerned department.
(C) Be pleased to direct the respondent no.2 to place before this Hon'ble Court the report as to what steps have been taken to safeguard the border and the security personnels in the area and whether any final permission has been given to the respondent no.6.
(D) During the pendency and final disposal of this petition, the respondent no.6 be stopped from starting its unit or other activities.
(E) Any other relief in the interest of justice may kindly be granted.
Case of the Petitioner :-
It is the case of the petitioner that the Collector, Kutch, vide order dated 29th February 2008, allotted lands admeasuring 24,021.78 hectares in the Greater Rann of Kutch as Phase-I of allotment out of 40,000 hectares of lands applied for by the respondent no.6 at a throw away price on a lease for a period of ten years.
According to the petitioner, the State Government or its authorities, namely, the Collector, Kutch, in the present case had no right in law to alienate, transfer or distribute the land of Kutch and its natural resources without following a fair and transparent method consistent with the fundamentals of Article 14 of the Constitution of India.
According to the petitioner, the Collector could not have allotted such a huge parcel of land without making it public or without putting up to auction so that the other persons interested in the project would also have come forward with a better proposal beneficial to the revenue of the State Government.
It is also the case of the petitioner that the respondent no.6 has established its project in the Greater Rann of Kutch for the purpose of manufacturing Sulphate of Potash, which is a green fertilizer, Gypsum, Bromine and other salt-based marine chemicals.
According to the petitioner, Bromine is a radioactive element highly injurious to the human-beings and that is the reason why the production of Bromine has been banned in European and American countries. It is also the case of the petitioner that for manufacturing of such chemicals prior approval is required from the Board of Radioactive Isotopes and Technology (BRIT), which does not appear to have been obtained by the respondent no.6.
It is also the case of the petitioner that the unit of the respondent no.6 is almost near the Indo-Pak border and, therefore, adequate steps should be taken by the respondent no.2 to safeguard the border and the security personnels deputed in the area.
Stance of the Respondent no.6 :-
According to the respondent no.6, the issue of allotment of land admeasuring 24,021.78 hectares in their favour by the State Government stood concluded with the dismissal of a writ-application being Special Civil Application No.18127 of 2011 filed by a Non-Governmental Organization working on social environmental issue, namely, 'Paryavaran Mitra', through its Programme Director Mahesh Pandya.
According to the respondent no.6, the petitioner herein has no locus to raise the same issue once again in the form of a Public Interest Litigation.
It has been denied by way of an affidavit-in-reply that Bromine is a radioactive element, or any of the activities of the respondent no.6 is harmful in any manner to the people at large. So far as the third issue raised by the petitioner regarding the location of the unit is concerned, it is the case of the respondent no.6 that its unit is located almost at a distance of 46 kms. from the Indo-Pak border. In such circumstances, it has been prayed that there being no merit in this petition, the same may be dismissed.
Having heard the learned counsel appearing for the respective parties and having gone through the materials on record, it appears that the first issue regarding the allotment of land in favour of the respondent no.6 admeasuring 24,021.78 hectares on a lease for a period of ten years is concerned, was a subject matter of challenge in a Special Civil Application No.18127 of 2011. In the said case, the challenge to the allotment was on the ground that the State Government could not have alienated, transferred or distributed the land of Kutch and its natural resources without following a fair and transparent method at a throw away price by fixing the rent of Rs.36,03,267=00 per annum. This very Bench negatived the challenge on three grounds : first, there was no illegality committed by the State Government in allotting the land in favour of the respondent no.6 as the allotment was in accordance with the policy of the State Government for establishing a salt industry, secondly, on the ground of delay in challenging such allotment because the allotment had taken place in the year 2008 and the petition was filed after a period of almost three years, and by that period of time, the respondent no.6 had already invested more than Rs.400 crore for establishment of the unit and almost 500 locals were found to be working at the unit, and thirdly, it was brought to our notice that the State Government, in exercise of powers conferred by Section 3 of the Commission of Inquiry Act, had appointed a Commission of Inquiry headed by Hon'ble Mr.Justice M.B.Shah, Former Judge of the Supreme Court of India, to probe into the allegations with regard to such allotment of lands.
Thus, so far as the first question is concerned, it has been set at rest by us vide our judgment and order dated 27th June 2012 passed in Special Civil Application No.18127 of 2011.
So far as the issue of Bromine is concerned, we find from the materials on record that Bromine is not a radioactive element as alleged by the petitioner. It is extensively produced in United States of America, South America, Europe, Israel, China and in India. Few other industries in the vicinity of the respondent no.6 unit in the Greater Rann of Kutch, namely, Agrocel Industries Limited and Solaris Chemtech Limited have been manufacturing Bromine past almost 15 years. We have been informed by the learned counsel appearing for the respondent no.6 that while certain isotopes of Bromine are radioactive, they are not going to be produced at the unit in the Greater Rann of Kutch.
Besides the above, it also appears from the materials on record that the requisite environmental clearance has also been granted in favour of the respondent no.6 for its unit in the Greater Rann of Kutch by the Ministry of Environment and Forests vide Notification dated 2nd September 2011.
Thus, so far as the second issue raised by the petitioner regarding manufacturing of Bromine is concerned, it does not appear to be that serious as sought to be highlighted by the petitioner warranting any probe into the same at the end of this Court.
So far as the third issue of security is concerned, we have gathered from the materials on record that the land allotted to the respondent no.6 is located at a distance of approximately 46 kms. from the Indo-Pak border. The other units in the vicinity of the respondent no.6, namely, Agrocel Industries Limited and Solaris Chemtech Limited have been carrying their activities past more than 15 years. Agrocel Industries Limited is located approximately at a distance of 52.3 kms. from the Indo-Pak border whereas Solaris Chemtech Limited is located approximately at a distance of 37.9 kms. from the Indo-Pak border.
Besides the above, the respondent no.6 has been granted the requisite security clearance by the Ministry of Chemicals and Fertilizers vide its communication dated October 23, 2007 based on the security clearance issued by the Ministry of Home Affairs, Government of India.
We have also taken notice of the affidavit-in-reply filed by the Deputy Inspector General, SHQ BSF, Bhuj. According to the Deputy Inspector General, BSF, the clearance in favour of the respondent no.6 was accorded with the following four suggestions :
(a) The administrative staff and other labourers working for the project should be issued identity cards with police verification. Lists also be provided to BSF.
(b) Employment of any foreigners, if any, may be scrutinized by the State Government.
(c) Further extension of the plant towards international border may not be considered.
The company may be directed to carry out afforestation in the nearby area so that the ecological balance and environment be maintained.
Thus, even according to the Director General, Border Security Force, there is no potential threat relating to the security as all necessary precautions are being taken by the respondent no.6 as suggested in the order of clearance.
Such being the position, we do not find any reason to adjudicate this petition any further and we are of the opinion that there being no merit in this petition, the same deserves to be dismissed.
For the foregoing reasons, this petition is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 11 of 11