Gujarat High Court
Aasariya Lakha Gilva & vs Union Of India & 6....Opponent(S) on 21 January, 2015
Author: V.M.Sahai
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/WPPIL/122/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 122 of 2013
With
CIVIL APPLICATION NO. 3690 of 2014
In
WRIT PETITION (PIL) NO. 122 of 2013
With
WRIT PETITION (PIL) NO. 204 of 2012
With
WRIT PETITION (PIL) NO. 54 of 2013
With
CIVIL APPLICATION NO. 1593 of 2014
In
WRIT PETITION (PIL) NO. 122 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
Page 1 of 35
C/WPPIL/122/2013 CAV JUDGMENT
================================================================
AASARIYA LAKHA GILVA & 1....Applicant(s)
Versus
UNION OF INDIA & 6....Opponent(s)
================================================================
Appearance:
MR SHALIN MEHTA, SR.ADVOCATE assisted by MR.ISHAN MIHIR PATEL,
ADVOCATE for the Applicant(s) No. 1 - 2
MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL for the Opponent(s)
Nos. 1 - 2
MR VANDAN BAXI, AGP for the Opponent(s) No. 3 , 5
MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 4
MR BIREN A VAISHNAV, ADVOCATE for the Opponent(s) No. 6
NOTICE UNSERVED for the Opponent(s) No. 2
MR MIHIR THAKORE, SR ADVOCATE assisted by MR SANDIP SINGHI for
SINGHI & CO, ADVOCATE for the Opponent(s) No. 7
================================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 21/01/2015
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. The present petitions in the nature of Public Interest Litigation are filed by the petitioners. The petitioners in Writ Petition (PIL) No.54 of 2013 and Writ Petition (PIL) No.204 of 2012 have, inter alia, primarily challenged the provisions of the National Green Tribunal Act including Sections 14, 18, 19 and 22 thereof as unconstitutional and have also Page 2 of 35 C/WPPIL/122/2013 CAV JUDGMENT challenged the notification establishing National Green Tribunal at Pune. These prayers are akin to prayer "A" and "B" of the captioned Writ Petition No.122 of 2013 which are not pressed by Mr.Shalin Mehta, learned Senior Counsel for the petitioners. Therefore, we dispose of Writ Petition (PIL) No.54 of 2013 and Writ Petition (PIL) No.204 of 2012 as not pressed and treat Writ Petition (PIL) No.122 of 2013 as the lead petition. Writ Petition (PIL) No.122 of 2013 is filed by the petitioners praying for the following reliefs.
"(A) grant interim relief by restraining the respondents from diverting/blocking flow of rivers and from constructing on river-beds;
(B) quash and set aside the provisions of the National Green Tribunal Act, including under Sections 14, 18, 19 and 22; and declare them to be unconstitutional; AND/OR direct establishment of a Green Tribunal in the State of Gujarat for the residents of Gujarat;
(C) issue a writ of certiorari or any other order to quash the respondent-
Collector's orders allotting and giving away the river-lands to the respondents;
(D) issue a writ of certiorari or any other order to quash and clearance, including environmental clearance, given by the respondent authorities or deemed to have been given without considering Page 3 of 35 C/WPPIL/122/2013 CAV JUDGMENT the fact of bunding and obstruction of flow of rivers;
(E) issue a writ of mandamus to the respondent State of Gujarat to take over the areas-in-question and to restore it to its original natural conditions by removing encroachments and obstructions that are blocking/obstructing the flow of rivers;
(F) and pass any other writ, order or direction or grant any other relief as may be deemed necessary to render justice to the concerned persons."
2. The facts giving rise to the present writ petitions are that Mundra is a coastal taluka in District Kutch which lies on the north shores of the Gulf of Kutch about 50 kilometers south of Anjar. Mundra belt is ecologically extremely fragile. This region supports lives and livelihoods of fishing, pastoral and farming communities and their salt panning activity. The main source of income for the local people is agriculture, horticulture (Kharek and Chikoo), farming and wage labour. It is the case of the petitioners that the rainfall received in this area is erratic and irregular and, therefore, moisture index is low. Majority of land in this district is degraded due to inherent salinity and ingress of salt from the desert. The soil is very permeable and porous and agricultural production of this land is sought to be significantly Page 4 of 35 C/WPPIL/122/2013 CAV JUDGMENT enriched with the availability of timely irrigation by the respondent government by spending huge money behind Integrated Watershed Management Programs. It is further case of the petitioners that many rain-fed rivers originating from different talukas in Kutch District flow in the North South direction through many villages and ultimately terminate into the Gulf of Kutch flowing through Mundra Taluka. All of these rivers (water-bodies) were required to be notified in the Gazette by the respondent State of Gujarat as per the direction laid down in Shailesh R.Shah vs. State of Gujarat reported at 2002(3) GLR 447.
3. It is the case of the petitioners that the cause of action for filing this petition is the destruction, bunding, blocking and diversion of more than 14 of these rivers viz., (1) Kundaal nadi, (2) Shiraacha chhelo, (3) Dhaaneshwari nadi, (4) Bochaavalo chhelo, (5) Navinal chhelo, (6) Naagmati river, (7) Kapuriyaa nadi, (8) Dhrabwaali nadi, (9) Raashaapir chhelo, (10) Daahyavaalo chhelo, (11) Kevli nadi, (12) Bhukhi nadi, (13) Luni nadi and (14) Lunivaalo chhelo and the calamitous consequences being faced by the people of Kutch, including flooding and loss of livelihood due to loss of agricultural income.
Page 5 of 35 C/WPPIL/122/2013 CAV JUDGMENT4. It is also the case of the petitioners that few of the environmental illegalities were brought to the notice of the respondent - Ministry of Environment and Forest and, therefore, by an "Office Memorandum" dated 14.9.2012, the said respondent has constituted a Committee for Inspection of the illegalities committed by the respondent. Accordingly, the Committee's inspection is complete and it has given a report containing findings against respondent No.7. In its report, the Committee has stated that it is not possible to assess allegations of damage to creek systems which have taken place over the past 6 - 7 years during the period of construction of ports, power-plant and its ancillary facilities. The damage currently being caused to the rivers does not come within the purview of the committee as it has become functus officio. It is also the case of the petitioners that the committee had mere recommendatory powers and, therefore, it is a toothless committee and even its feeble recommendations are not being acted upon and in the meanwhile, respondent No.7 is continuing with its illegalities by turning a blind eye towards law. Hence, the petitioners have approached this Court by filing the present petition in the nature of Public Interest Litigation.
Page 6 of 35 C/WPPIL/122/2013 CAV JUDGMENT5. Vide order dated 12.6.2013, this Court issued the notice to the respondents making it returnable on 26.6.2013. Pursuant thereto, preliminary affidavit-in-reply is filed by one Jatin Jalundhwala on behalf of respondent No.7 and rejoinder affidavit and further affidavits are also filed by the petitioners. Thereafter, supplementary affidavit-in-reply is also filed by respondent No.7. Further affidavits-in-reply are also filed by the respondent authorities. In the meanwhile, the petitioners have preferred Civil Application (For Interim Relief) No.3690 of 2014 for granting ad-interim relief/directions to the effect that the respondent No.7 shall maintain status quo qua the lands described / identified with the mark 'X' in the map (at Annexure 'A2' so as to not create any obstruction whatsoever in the natural course of the 8 rivers mentioned in the application, amongst other prayers.
6. We have heard Mr.Shalin Mehta, learned senior counsel assisted by Mr.Ishan Mihir Patel for the petitioners, Mr.Devang Vyas, learned Assistant Solicitor General for respondent Nos.1 and 2, Mr.Vandan Baxi, learned AGP for respondent Nos.3 and 5, Mr.P.S.Champaneri, learned counsel for respondent No.4, Mr.Biren Vaishnav, learned counsel for respondent No.6, Mr.Mihir Thakore, learned senior counsel assisted by Mr.Sandip Page 7 of 35 C/WPPIL/122/2013 CAV JUDGMENT Singhi for respondent No.7.
7. Heard both parties at length. The learned counsels from both the parties took us to various maps, revenue records, large number of photographs, reports and other records germane to these matters. Since the questions raised in these writ petitions fundamentally relates to alleged blocking of 14 rivers in Mundra Taluka region of Kutch District by M/s.Adani Port and SEZ Ltd., and in the backdrop of UN Climate talks ending in Lima with the setting of deadlines for the world to come up with plans to curb emissions and adapt to climate change, we thought it to be deemed fit and proper to keep the judgment reserved vide order dated 9.12.2014.
8. On going through the records, it is noticed that the petitioners have also filed a copy of report of the Committee constituted by the Ministry of Environment & Forests, Government of India, New Delhi to look into the complaints regarding severe impact upon environment safety and integrity committed by M/s.Adani Port and SEZ Ltd. It is further noticed that upon receiving various complaints regarding alleged severe impact upon environmental safety and integrity in Mundra Port and SEZ Limited in Mundra - Kutch committed by M/s.Adani Port and SEZ Ltd., and in Page 8 of 35 C/WPPIL/122/2013 CAV JUDGMENT view of the Writ Petition in the nature of Public Interest Litigation bearing No.W.P. (PIL) No.12 of 2011 filed in this Court alleging violation of Environmental Clearance by M/s.Adani Port and SEZ Ltd., the Ministry of Environment & Forests, Government of India, vide Office Memorandum dated 14/9/2012 constituted a Committee for inspection of M/s.Adani Port and SEZ Ltd., Mundra to look into the complaints regarding severe impact upon environment safety and integrity committed by M/s.Adani Port and SEZ Ltd. The said committee consisted of following members:-
1. Ms.Sunita Narain, Chairperson
2. Shri Anthony Gnanamuthu, Member
3. Prof. R.Ramesh, Member
4. Dr.A.Mehrotra, Member
5. Shri Lalit Kapur, Member.
8.1 The broad terms of reference of the Committee for inspection of M/s.Adani Port and SEZ Ltd., are to examine:-
(a) the allegations regarding bunding/diversion/ blocking of creeks and reclamation etc. and thereby distortion of original HTL.
(b) the HTL submitted by the Proponent and HTL of approved Coastal Zone Management Plan.
(c) whether construction of Mundra port, roads, railway was taken up prior to grant of Page 9 of 35 C/WPPIL/122/2013 CAV JUDGMENT Forest/ Environment Clearance.
(d) the development of port with respect to the approved components.
(e) compliance of the conditions of the Environmental and CRZ clearance granted for the port development.
(f) the destruction of mangroves and levelling of sand dunes.
(g) the development of Power Plant with respect to the approved components.
(h) compliance to the conditions of the Environmental clearance granted for the Power Plant.
(i) the likely impacts on agriculture due to ingress of salinity due to creation of huge water body of sea water for Adani Power Plant at Mundra Taluka.
(j) the issues related to handling of fly ash by Adani Power Limited and particularly with reference to the Notification on utilisation of fly ash.
(k) the issues related to earthquake/Tsunami/ other natural calamities and soil liquefaction which may be impacted adversely by the project.
8.2 The said Committee visited the site and submitted its report to the Government of India on 18/4/2013. On going through the report, it is noticed that the Committee has observed at page 12 of their report that in all conditions for clearance it has been made clear that no creeks are to be blocked during the construction and Page 10 of 35 C/WPPIL/122/2013 CAV JUDGMENT operation of the project. It has also been repeatedly conveyed that the natural drainage of the area should not be affected due to the project and no filling/reclamation of creeks is allowed. Lastly, the said Committee has come to the conclusion that the Adani Waterfront and Power Plant Project, which has been granted clearance in different phases beginning the year- 1995 has led to massive ecological changes with adverse impacts. Amongst the several reformatory measures cited, the Committee has recommended following measures for project clearance conditions and post clearance monitoring:
1.The current regulatory system is not able to handle the complexity and size of projects of this nature. There is an urgent need to strengthen the monitoring abilities and to bring in public oversight.
2.The monitoring and auditing of such a large project is only possible, if the clearance conditions are specific and detailed, geo-
referenced and there is a landsat imagery analysis to benchmark the project area, pre- construction. Without these benchmarks, it is not possible, to ascertain the extent and scale of the violations committed during construction and operation phase.
Page 11 of 35 C/WPPIL/122/2013 CAV JUDGMENT3.More, importantly, a system should be developed so that all monitoring data is widely accessible by local communities to use and comprehend in terms of impacts.
Lastly, the Committee has recommended that there is a need to create a monitoring system to ensure that corrective action suggested by this report is taken within a time-bound manner.
9. A preliminary affidavit-in-reply was filed by Respondent No.7 on 14.8.2013 stating that they initiated first port activity in the year 1998 and subsequently in the year 2005, the Government of Gujarat allotted land to respondent No.7 by separate allotment orders in respect of its Special Economic Zone. Thus, in spite of such knowledge, the captioned writ petition is filed after more than 7 years and therefore this writ petition suffers from delay and laches. The report dated 18.4.2013 of the Committee constituted by the Ministry of Environment & Forests, Government of India, is not germane to the subject matter of the present writ petitions. Neither the terms of reference nor the said report mentions alleged blockage or obstruction of rivers by respondent No.7. The Page 12 of 35 C/WPPIL/122/2013 CAV JUDGMENT petitioners have made unsubstantiated allegations that colossal damage was being done to the environment while the aforesaid committee was taking time to inspect into the matter, only to create a facade of dispute and to prejudice this Court against respondent No.7 and has denied that respondent No.7 has caused destruction or bunding or diversion or obstruction of any rivers and has carried out its activities on the land allotted to it, as demarcated in the maps of the revenue department, and as per terms and conditions laid down in the respective allotment orders.
10. A affidavit-in-reply was also filed by Mr.Narendra Shah, Under Secretary (Environment), Forests and Environment Department, Government of Gujarat on 31.1.2014 stating that the Ministry of Environment and Forests (MOEF), Government of India has granted Environmental Clearance for the power plant on 13.8.2007 for Phase-I and Coastal Regulatory Zone (CRZ) clearance for the purpose of intake and disposal facilities for the Phase-I was granted on 20.9.2008. Similarly, Environmental Clearance for Phase-II was granted on 21.10.2008. Environmental Clearance for water front development was granted on 12.1.2009 which came to be amended on 19.1.2009. Thereafter, the Ministry of Environment and Forests (MOEF), Government of India has also issued Environmental Page 13 of 35 C/WPPIL/122/2013 CAV JUDGMENT Clearance for Phase-III on 20.5.2010. In view of the above position and since the Ministry of Environment and Forests (MOEF), Government of India has constituted a committee for the inspection of M/s. Adani Port and SEZ Limited, Mundra and the fact that the said committee has submitted its report to the Ministry of Environment and Forests (MOEF), Government of India, it is for the said Ministry to take a decision in view of such report and once the said Ministry takes its decision, the State Government would initiate appropriate action accordingly.
11. Thereafter, a affidavit-in-reply was filed by Mr.Narayan Madhu, Deputy Collector, Mundra, on 2.4.2014 stating that in view of the present writ petition, the Office of the Collector has constituted a Committee comprising (1) Prant Officer, Mundra, (2) Executive Engineer, Irrigation Department (State), Bhuj, (3) Executive Engineer, Irrigation Department (Panchayat), Bhuj, (4) Deputy Executive Engineer, Road & Building Department, (State), Mundra (5) Deputy Executive Engineer, Road & Building Department, (Panchayat), Mundra and (6) DILR, Bhuj. Since the issues raised in the captioned writ petition being highly technical involving officers and experts from various offices, he requested to grant 3 to 4 months time to Page 14 of 35 C/WPPIL/122/2013 CAV JUDGMENT undertake the task effectively and to submit the report before this Court.
12. Lastly, a affidavit-in-reply was filed by Prant Officer Mundra on 23.9.2014 stating that the Committee constituted by the Collector, Bhuj conducted a site inspection on 19.9.2014 and prepared rojkam and has also taken photographs. The Committee found that there is no bunding and obstruction to the natural flow of water by the national highway / state highway, railway bridge with APSEZ area. As regards to 14 rivers, the Committee has submitted detailed report as under:-
Sr. Name of the river Remarks
No.
1 Kundal River: Upon site inspection, no
type of obstruction has been
found with reference to the
river as shown in the
revenue records and the
water can flow easily.
2 Shiracha Chhello: No wall has been constructed
in Shiracha Chhello. In the
river portion, barbed wire
fencing can be seen. From
the photographs it is
clearly visible that the
water can flow through the
Page 15 of 35
C/WPPIL/122/2013 CAV JUDGMENT
Sr. Name of the river Remarks
No.
culvert of the Adani Railway
Road Bridge, No type of
obstruction or bunding could
be seen in such passages.
3 Dhaneshwar River: No bunding was found and the
water flows without any
obstruction.
4 Bochavalo Chhello: There is railway road,
bridge and barbed wire
fencing. No construction has
been made within the river
and no obstruction has been
found in the flow of the
water.
5 Navinal Chhello: No buinding has been done at
the railway road, any of the
passages under the bridge or
at the river. No type of
construction has been done
and in the end it is seen to
merge in Bochavalo Chhello
as the water does not face
any obstruction.
6 Nagmati River: No bunding has been found in
the railway road, bridge,
passages of the tunnels or
in the river. There is no
possibility that the water
Page 16 of 35
C/WPPIL/122/2013 CAV JUDGMENT
Sr. Name of the river Remarks
No.
causes flooding as the river
gets divided into two parts,
one of which is 180 mtrs and
other is of 100 mtrs width
and in both cases the banks
are in good condition. The
water flows without any
obstruction which is evident
from the photographs showing
height and width of the
culvert bridge.
7 Kapuriya River: No boundary wall has been
constructed in the river and
it has been found that the
water flows easily through
the barbed wire fencing. No
bunding has been found at
the railway road, passages
under culvert bridge and the
water flows without any
obstruction.
8 Dhrabvalli River: No wall has been constructed
in the river. No bunding has
been found at the railway
road, passages under culvert
bridge and the water flows
without any obstruction.
9 Rasapir Chhello No construction has been
Page 17 of 35
C/WPPIL/122/2013 CAV JUDGMENT
Sr. Name of the river Remarks
No.
and and Dahiyavalo found in the flow of the
10
Chhello: water. There is wire fencing
as evidently seen from the
photographs and water is not
obstructed from flowing
through it.
11 Kevli River and Wired fencing has been done
and
12 Bhukhi River: in the Kevli River and no
type of construction has
been found to be made in the
river and no blockages has
been found at the railway
road or culvert bridge and
the water flows without any
obstruction.
13 Lunivali River and As seen from the photographs and 14 Lunivalo Chhello: there are pipe culverts at railway road bridge at the Luni river which is in the Luni village and water flows easily without obstruction through the wired fencing.
No construction has been found in the river. Lunivalo Chhello passes through road railway culvert bridge and the river flows through the wire fencing without any Page 18 of 35 C/WPPIL/122/2013 CAV JUDGMENT Sr. Name of the river Remarks No. obstruction. No construction has been made in the river and the water flows without any obstruction.
13. At the outset, Mr.Shalin Mehta, learned Senior Counsel for the petitioners fairly submitted that he is not pressing for prayer "A" and "B" made in the writ petition, as above. Mr.Mehta vehemently argued that this public interest litigation is not adversarial litigation but it is in a nature of inquisitorial litigation. The Government is not doing its bit. Rivers cannot be a trust of private ownership. Respondent No.7 has spoiled, dried and desecrated the rivers. Mr.Mehta further argued that the Committee constituted by the Ministry of Environment and Forest is a toothless committee as it has mere recommendatory powers and even its feeble recommendations are not being acted upon. The damage currently being caused to the rivers does not come within the purview of the committee and it has now become functus-officio. Even though, Mr.Mehta took us to various recommendations made by the Committee in its report and placed reliance on large-scale reference to sketches, maps and drawings filed before this Court. Mr.Mehta further argued that Page 19 of 35 C/WPPIL/122/2013 CAV JUDGMENT the report of the Prant Officer is no report. It has several infirmities. It is not filed pursuant to any direction of this Court and its only on the basis of the respondent-Collector's opinion and they do not have any locus or power to undertake the exercise of appointing a committee. In their earlier affidavit-in-reply filed on 2.4.2014, they have stated that the members of the committee have opined that it would be essential to acquire opinion of experts and facts can only be ascertained on the basis of such expert opinion. However, when the committee finally came up with a report vide affidavit-in- reply filed on 23.9.2014 by the Prant Officer, Mundra, no such expert opinions have been sought for or relied upon. It is solely based on alleged site-inspection. Therefore, there must be an independent fact finding commission. He has, therefore, requested to appoint an independent commission to look into the matter and direct the State Government to take over the areas in question and to restore it to its original natural conditions by removing encroachments and obstructions that are blocking/obstructing the flow of rivers.
13.1 Mr.Mehta also took us to Regulation No.6 (10) of the "General Development Control Regulations for Special Economic Zone, 2007"
Page 20 of 35 C/WPPIL/122/2013 CAV JUDGMENTwhich states that no developments shall be permitted in area designated for water body, pond and talav. Regulation No.8 of the said Regulations stipulates as under:-
"8. Distance from water course:- No development whatsoever, whether by filling or otherwise shall be carried out within 30 Mts. from the boundary of the bank of the river where there is no river embankment and within 15 Mts. or such distance as may be prescribed under any other general or specific orders of Government and appropriate Authority whichever is more, from river where there is river embankment but in case of kans, nala, canal, talav, lake, water- bodies etc. it shall be 9.00 mts."
Mr.Mehta further submitted that in spite of such stipulation they have made construction in violation of aforesaid regulations as evidently noticed from the report of the Prant Officer.
13.2 Lastly, Mr.Mehta has placed reliance on following decisions:-
1. In CAV Judgment dated 20/6/2014 passed Page 21 of 35 C/WPPIL/122/2013 CAV JUDGMENT in Writ Petition (PIL) No.231 of 2013, in the matter between Kharai Juth Gram Panchayat v.
State of Gujarat & ors., this Court has observed in para 11 as under:-
"11. Mining is an important revenue- generating industry. However, one cannot allow our national assets to be placed into the hands of companies without a proper mechanism in place and without ascertaining the credibility of the user agency.
The mining operation is hazardous in nature. It impairs ecology and people's right of natural resources. The entire process of setting up and functioning of mining operation require utmost good faith and honesty on the part of the intending entrepreneur. For carrying on any mining activity close to township which has tendency to degrade environment and are likely to affect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that public and all those concerned including authorities may decide whetherthe permission can at all be granted for carrying on mining activity. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by such entrepreneurs. When questioned, the regulatory authorities have to show that the said authorities acted in the manner enjoined upon them. Where the regulatory authorities, either connive or act negligently by not taking prompt action to prevent, avoid or control the damage to environment, natural resources and peoples' life, health and property, the principles of accountability for restoration and compensation have to be applied.
The development and the protection of environments are not enemies. If without Page 22 of 35 C/WPPIL/122/2013 CAV JUDGMENT degrading the environment or minimising adverse effects thereupon by applying stringent safeguards, it is possible to carry on development activity applying the principles of sustainable development, in that eventuality, the development has to go on because one cannot lose sight of the need for development of industries, irrigation resources and power projects etc. including the need to improve employment opportunities and the generation of revenue. A balance has to be struck. We may note that to stall fast the depletion of forest, series of orders have been passed by the Supreme Court in T. N. Godavarman's case regulating the felling of trees in all the forests in the country. Principle 15 of Rio Conference of 1992 relating to the applicability of precautionary principle which stipulates that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for proposing effective measures to prevent environmental degradation is also required to be kept in view. In such matters, many a times, the option to be adopted is not very easy or in a strait-jacket. If an activity is allowed to go ahead, there may be irreparable damage to the environment and if it is stopped, there may be irreparable damage to economic interest. In case of doubt, however, protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment.(See M.C. Mehta Vs. Union of India and ors., reported in (2004) 12 SCC 118 and T.N. Godavarman Thirumulpad Vs. Union of India and ors. reported in (2008) 2 SCC 222)."
2. In reportable judgment dated 4/9/2014 passed in Criminal Appeal No.499 of 2011 and other allied Criminal Appeals, the Honourable Supreme Court has observed in para 30 & 55 as under:-
Page 23 of 35 C/WPPIL/122/2013 CAV JUDGMENT"30. The mining of aggregates in rivers has led to severe damage to river, including pollution and changes in levels of pH. Removing sediment from rivers causes the river to cut its channel through the bed of the valley floor, or channel incision, both upstream and downstream of the extraction site. This leads to coarsening of bed material and lateral channel instability. It can change the riverbed itself. The removal of more than 12 million tonnes of sand a year from the Vembanad Lake catchment in India has led to the lowering of the riverbed by 7 to 15 centimetres a year. Incision can also cause the alluvial aquifer to drain to a lower level, resulting in a loss of aquifer storage. It can also increase flood frequency and intensity by reducing flood regulation capacity. However, lowering the water table is most threatening to water supply exacerbating drought occurrence and severity as tributaries of major rivers dry up when sand mining reaches certain thresholds."
"55. There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country. Similarly, Article 51-A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for all the living creatures. In view of the Constitutional provisions, the Doctrine of Public Trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, waters and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership."
3. In the case of City and Industrial Development Corporation v. Dosu Aardeshir Page 24 of 35 C/WPPIL/122/2013 CAV JUDGMENT Bhiwandiwala and Ors., reported in AIR 2009 SC 571, the Hon'ble Supreme Court observed in para 22 and 27 as under:-
"22. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex- parte writ of Mandamus, order or direction in a public law remedy. Further, while considering validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extra ordinary jurisdiction under Article 226 of the Constitution. The court while exercising its jurisdiction under Article 226 is duty bound to consider whether :
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of
Limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
The court in appropriate cases in its Page 25 of 35 C/WPPIL/122/2013 CAV JUDGMENT discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the court and particularly in cases where public revenue and public interest are involved. Such directions always are required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter affidavit opposing the writ petition. Further, empty and self-defeating affidavit or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public remedy to which he is not otherwise entitled to in law."
"27. It will not be appropriate to dispose of the matter without one word about the conduct of the State Government reflecting highly unsatisfactory state of affairs. We express our grave concern as to the manner in which State has conducted in this case. It is the constitutional obligation and duty of the State to place true and relevant facts by filing proper affidavits enabling the court to discharge its constitutional duties. The State and other authorities are bound to produce the complete records relating to the case once Rule is issued by the court. It is needless to remind the Governments that they do not enjoy the same amount of discretion as that of a private party even in the matter of conduct of litigation. The Governments do not enjoy any unlimited discretion in this regard. No one need to remind the State that they represent the collective will of the society."
4. In the case of Manohar Joshi v. State of Maharashtra and others, reported in (2012) 3 SCC 619, the Hon'ble Supreme Court observed in para 185 as under:-
"185. Public Interest Litigation is not in the nature of adversarial litigation, but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful as observed by this Court in Page 26 of 35 C/WPPIL/122/2013 CAV JUDGMENT paragraph 9 of Bandhua Mukti Morcha Vs. Union of India [AIR 1984 SC 802]. By its very nature the PIL is inquisitorial in character. Access to justice being a Fundamental Right and citizen's participatory role in the democratic process itself being a constitutional value, accessing the Court will not be readily discouraged. Consequently, when the cause or issue, relates to matters of good governance in the Constitutional sense, and there are no particular individuals or class of persons who can be said to be injured persons, groups of persons who may be drawn from different walks of life, may be granted standing for canvassing the PIL. A Civil Court acts only when the dispute is of a civil nature, and the action is adversarial. The Civil Court is bound by its rules of procedure. As against that the position of a Writ Court when called upon to act in protection of the rights of the citizens can be stated to be distinct."
14. On the contrary, Mr.Mihir Thakore, learned Senior Counsel appearing on behalf of respondent No.7 vehemently argued that they have carried out their activities on the land allotted to them, as demarcated in the maps of the revenue department and as per the terms and conditions laid down in the allotment orders and environmental clearance certificates. They have not caused any destruction or bunding or diversion or obstruction on any rivers, much less the alleged 14 rivers. Mr.Thakore further argued that the report dated 18.4.2013 of the Committee constituted by the Ministry of Environment & Forests, Government of India, is not germane to the subject matter of the present writ petitions. Neither the terms of reference of the committee Page 27 of 35 C/WPPIL/122/2013 CAV JUDGMENT for inspection talks about the alleged blocking of 14 rivers nor the said report mentions alleged blockage or obstruction of rivers by the company.
14.1 Mr.Thakore further submitted that, in any case, the Committee constituted by the Ministry of Environment and Forests, Government of India, to look into the allegations has submitted their report with recommendations and it is for the Government to take any remedial or decisive action and they would abide by such directions.
15. Mr.Vandan Baxi, learned AGP for respondent Nos.3 and 5 submitted that the report filed by the Prant Officer, Mundra clinches the issue as the Committee constituted by the Collector, Bhuj has found that there is no bunding and obstruction to the natural flow of water by the national highway / state highway, railway bridge within the APSEZ area. The Committee has also filed detailed report as regard to the 14 rivers in question. He further submitted that nevertheless in view of the fact that the Committee constituted by the Ministry of Environment and Forests has submitted its report and it is for the said Ministry to take a decision in view of such report and once the said Ministry takes its decision, the State Government Page 28 of 35 C/WPPIL/122/2013 CAV JUDGMENT would initiate appropriate action accordingly.
16. Having heard both the parties and upon minutely perusing the records made available to us, it is evidently clear that the petitioners have sought quashing of the respondent - Collector's allotment orders allegedly allotting lands which has allegedly resulted into encroachment on river beds on 14 rivers mentioned in this writ petition. However, from the above discussion, it is very well construed that the terms of reference of the committee constituted by the Ministry of Environment and Forests (MoEF), New Delhi to look into the complaints regarding severe impact upon environment safety and integrity committed by M/s.Adani Port and SEZ Ltd does not refer to the alleged blocking of 14 rivers by the respondent-company, which is the subject matter in these writ petitions. Though the Committee has come to the conclusion that the respondent-company, which has been granted clearance in different phases beginning the year 1995 has led to massive ecological changes with adverse impacts, it does not indicate and reference to the alleged blocking of 14 rivers by the respondent-company. Even Mr.Mehta, learned Senior Counsel appearing for the petitioners has submitted that the damage currently being caused to the rivers does not come within the purview of Page 29 of 35 C/WPPIL/122/2013 CAV JUDGMENT the committee and it has now become functus- officio. True it is that we cannot claim to be experts; but we need not to see what is ex-facie evident. Therefore, notwithstanding the protracted arguments advanced and the large-scale reference to sketches, maps and drawings filed before this Court, we are of the opinion that the report of the Committee constituted by the Ministry of Environment and Forests (MoEF), New Delhi is not germane to the subject matter of these writ petitions.
17. In view of the above, let us examine the report of the committee constituted by the Collector, Bhuj. The said Committee consisting of high ranking Government officials was constituted specifically to look into the issues raised in the captioned writ petitions. The aforesaid committee conducted a site inspection on 19.9.2014 and prepared rojkam and has also taken photographs, which is filed in this Court by way of affidavit. The Committee found that there is no bunding and obstruction to the natural flow of water by the national highway/state highway, railway bridge with APSEZ area. The said Committee has also filed detailed report as regard to the present position of 14 rivers in question. Mr.Mehta has raised preliminary objection to filing such report and has further Page 30 of 35 C/WPPIL/122/2013 CAV JUDGMENT contended that such report is not filed pursuant to any direction of this Court and its only on the basis of the respondent-Collector's opinion and they do not have any locus or power to undertake the exercise of appointing a committee. We do not find any force in the above contention of Mr.Mehta as on one side, he has heavily relied upon the report filed by the Committee constituted by the Ministry of Environment and Forests (MoEF), New Delhi, which was also not constituted pursuant to any direction of this Court and on the other side, he contends that the report of the committee constituted by the Collector, Bhuj is not filed pursuant to any direction of this Court and its only on the basis of the respondent-Collector's opinion and they do not have any locus or power to undertake the exercise of appointing a committee.
18. Mr.Mehta further contended that in their earlier affidavit-in-reply filed on 2.4.2014, they have stated that the members of the committee constituted by the Collector, Bhuj have opined that it would be essential to acquire opinion of experts and facts can only be ascertained on the basis of such expert opinion. However, when the committee finally came up with a report vide affidavit-in-reply filed on 23.9.2014 by the Prant Officer, Mundra, no such Page 31 of 35 C/WPPIL/122/2013 CAV JUDGMENT expert opinions have been sought for or relied upon. It is solely based on alleged site- inspection. Therefore there must be an independent fact finding commission. He has, therefore, requested to appoint an independent commission to look into the matter and direct the State Government to take over the areas in question and to restore it to its original natural conditions by removing encroachments and obstructions that are blocking/obstructing the flow of rivers.
18.1 As regards the contention that the report has been filed without relying upon experts opinion, we do not find any force in the said contention as the Committee constituted by the Collector, Bhuj comprises of high ranking Government officials having adequate technical expertise. As regards the contention for appointing an independent fact finding commission to look into the matter as the report of the aforesaid committee is not satisfactory, in our view and in our reading of the report, no blockage, obstruction and bunding to the natural flow of above 14 rivers in question are found. Prima-facie, in our opinion, there is no cause or concern to appoint an independent fact finding commission to look into the matter. We are also apprised of the facts that the respondent-company Page 32 of 35 C/WPPIL/122/2013 CAV JUDGMENT has been granted phase-wise Environmental Clearance beginning the year 1995 by the Ministry of Environment and Forests (MOEF), Government of India, New Delhi for their project and the State Government has allotted various parcels of lands to the respondent-company and they have developed the area pursuant to such Environmental Clearance and allotment of lands. Therefore, we cannot accede to the above request made by the learned counsel for the petitioners.
19. We have gone through the decisions of this Court as well as of the Hon'ble Supreme Court relied upon by the learned Senior Counsel for the petitioners. We do not find the ratio decidendi propounded by the said decisions will be of any help to the petitioners in the facts and circumstances of the present case. The prime contention or concern which appears on the part of the petitioners is that 14 rivers were flowing and due to allotment of the land and resultant development, the respondent-company has blocked natural flow of water in above 14 rivers which has resulted into bunding of rivers. However, as narrated above, the report submitted by the Committee constituted by the Ministry of Environment and Forests (MoEF), New Delhi as well as the report of the inspection carried out by high ranking Government officials clearly reveals Page 33 of 35 C/WPPIL/122/2013 CAV JUDGMENT that no where natural flow of rivers is blocked or obstructed in such a way that it may result into bunding. Even otherwise also, 14 rivers appear to be seasonal in nature and so during rainy season, there may be flowing water and during the end of winter and summer, they must be getting dry. The nature of flowing water is such if there is any blockage in the way of canal, then naturally, it may result into bunding of adjacent land, but in both the reports referred above, nowhere bunding is noticed which itself clearly indicative that the respondent company has not done material change in the flow of water and river-bed by which major blockage results into bunding. In view of the aforesaid observations made by the committee, we are convinced that no direction is required to be issued in the matter and the complaint and grievance raised by the petitioners appears to be baseless.
20. In view of the aforesaid discussion, we do not find any merit in the writ petition. The writ petition fails and is accordingly dismissed. Notice stands discharged. No order as to cost.
21. In view of disposal of the writ petitions, Civil Applications, referred above, do not survive and are disposed of accordingly.
Page 34 of 35 C/WPPIL/122/2013 CAV JUDGMENT(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) pathan Page 35 of 35