1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION PUBLIC INTEREST LITIGATION NO. 42 OF 2009 Dighi Koli Samaj Mumbai Rahivasi Sangh, ) (Regd.), Through its Secretary ) Shri [ENTITY], having its Office ) at Hut No.40/3/6, Manurwadi, Wadala, ) Mumbai - 400 037. ) Petitioner Versus 1. [ENTITY], ) Through its Ministry of Environment ) & Forest Paryavaran Bhavan, CGO ) Complex, Lodhi Road, ) New Delhi - 110 003. ) 2. [ENTITY], ) through Secretary, ) Urban Development Department, ) Mantralaya, Mumbai. ) 3. [ENTITY], ) having its office at Indian ) Mercantile Chambers, 3rd Floor, ) Ramjibhai Kamani Marg, ) Ballard Pier, Mumbai. ) 4. [ENTITY], ) At Alibag, District - Raigad, ) Downloaded on - 09/06/2013 14:45:40 2 5. Maharashtra Pollution Control Board,) through its Chairman, Kalpataru ) th Point 3 and 4 Floor, Sion Matunga ) Scheme Road No.8, Opp. Cine Planet ) Cinema, Near Sion Circle, ) Sion (East), Mumbai - 400 022. ) 6. Dighi Port Limited, ) Through its Chairman, having its ) Office at New Excelsior Building, ) 6th Floor, A.K. Nayak Marg, ) Fort, Mumbai - 400 001. ) 7. Shri [ENTITY], ) Residing at Kudgaon, ig ) Tal. [ENTITY]. ) 8. Shri [ENTITY], ) Residing at Rajpuri, [ENTITY], ) Dist. Raigad. ) 9. Shri [ENTITY], ) Residing at Ekdara, ) [ENTITY], Dist. Raigad. ) 10. Shri [ENTITY], ) Residing at Rajpuri, ) [ENTITY], Dist. Raigad. ) 11. Shri [ENTITY], ) Residing at Dighi, ) Tal. [ENTITY], Dist. Raigad. ) 12. Shri [ENTITY], ) Residing at Dighi, ) Tal. [ENTITY], Dist. Raigad. ) Downloaded on - 09/06/2013 14:45:40 3 13. Shri [ENTITY], ) Residing at Dighi, ) Tal. [ENTITY], Dist. Raigad. ) 14. Shri [ENTITY], ) Residing at Kudgaon, ) Tal. [ENTITY], Dist. Raigad. ) 15. Shri [ENTITY], ) Residing at Turumbadi, ) [ENTITY], Dist. Raigad. ) 16. Shri [ENTITY], ) Residing at Mendadi, ) [ENTITY], Dist. Raigad. ig ) 17. Shri [ENTITY], ) Residing at Kharsai, ) [ENTITY], Dist. Raigad. ) 18. Shri [ENTITY], ) Residing at Pabhare, ) [ENTITY], Dist. Raigad. ) 19. [ENTITY], ) Residing at Vashi, ) Tal. Tala, Dist. Raigad. ) 20. Shri [ENTITY], ) Residing at Rahatat, ) Tal. Tala, Dist. Raigad. ) Respondents Shri [ENTITY], Sr. Counsel i/by Shri [ENTITY] for the Petitioners. Shri [ENTITY], AGP for the State. Downloaded on - 09/06/2013 14:45:40 4 Ms [ENTITY] i/by Umesh Shetty & Co. for Respondent No.3. Ms [ENTITY] for Respondent No.5. Shri [ENTITY] along with Shri [ENTITY] i/by M/s. Little & Co. for Respondent No.6. Shri [ENTITY] for Respondent Nos.11 to 13. Shri [ENTITY], Additional Solicitor General along with Shri [ENTITY] for [ENTITY]. Shri [ENTITY] i/by [ENTITY] for Respondent Nos.7, 10, 14 to 20. CORAM : [ENTITY] , C.J. & [ENTITY], J JUDGMENT RESERVED ON : 11TH JUNE, 2009 JUDGMENT PRONOUNCED ON : 9TH JULY, 2009 JUDGMENT :
(PER [ENTITY], C. J.) Heard. Rule. By consent, rule made returnable forthwith.
Learned Counsel appearing for the Respondents waive service. By consent, the Petition is taken up for hearing and final disposal at the admission stage itself.
2. The Government of India, Ministry of Environment and Forest, New Delhi, vide its Notification dated 30th September, 2005 granted environmental clearance for development of Dighi Port Development Project ( Phase - I ) in terms of [ACT], as amended from time to time, subject to effective implementation and compliance of the conditions stated in the said Notification. Number of conditions were imposed upon Dighi Port Limited for development of Dighi Port which related to various aspects including socio-economic development welfare measures in the area, including providing of drinking water scheme, vocational training fishery related development programmes, compliance with various provisions of law and the Notification with particular reference to obtaining the requisite consent for discharge of effluents and emissions under the [ACT] and the [ACT] from the Maharashtra Pollution Control Board before commissioning of the project.
3. The Petitioner is a registered body which claims to promote and safeguard the interest of the villagers of village Dighi has filed the Petition primarily on the following grounds :-
(a) Clearance for development has been granted contrary to law. The affected villagers/persons were not granted public hearing as required under the law. Non-compliance to this statutory aspect would vitiate the Notification dated 30th September, 2005;
(b) Various conditions for granting of sanction accorded are otherwise not in public interest and have been permitted in favour of Respondent No.6 at the cost of large number of villagers who are personally affected ;
(c) And in the alternative, even if the permission is held to be valid, still the concerned Respondents have violated the conditions with impunity with particular reference to damaging the sand and reclaiming the land from the sea ;
(d) The environment and ecology of the area have been destroyed to the disadvantage of the people of the area at large; and
(e) Lastly, despite there being a specific stipulation in regard to putting in place of proper system of water supply, the Respondents, particularly Respondent No.6, has failed to provide/install proper water supply from time to time in the villages. They have not even made proper arrangement for temporary supply of water. This was an essential condition and in fact the essence for grant of permission, and therefore, the violation thereof would be fatal.
4. Thus, according to the Petitioners, clearance granted should be set aside and development of the project should be stopped forthwith.
5. It is claimed that source of livelihood of the villagers in the village Dighi and other surrounding villages is agriculture, agricultural labour and doing fishing by a country craft, canoes and fishing vessels.
There are about 120 fishing vessels. This village has a population of nearly 5000 to 6000. The residents of the village are primarily dependent on agriculture and agriculture labour and the children have not gone for higher education because of financial conditions.
[ACT] has been enforced in these areas primarily to protect the interest of persons living there and [SECTION] thereof emphasizes how the residents' interest is to be protected. In the year 1974-75, Jetty was inaugurated and impression was given to the community engaged in fishing that it was for their benefit for loading and unloading fish catch and for drying fishing nets.
However, Jetty was not allowed to be used for landing fishing catch and/or for drying fishing nets. The land was acquired by Respondent No.2 State in the Village Dighi, Taluka - [ENTITY], District - Raigad for public purpose of giving to Mazgaon Dock Limited in the year 1989.
It was learnt by the Petitioners that even before obtaining the environmental clearance, Respondent No.6 signed a fifty year concession agreement on so called BOOST basis with Respondent No.3 [ENTITY] on 17th March, 2002. This fact has come into light in the year 2007. Even signing of agreement and giving public property in the hand of private entrepreneur like Respondent No.6, according to the Petitioners, is unjustified and was done without following the prescribed procedure. The Maharashtra Pollution Control Board has made a farce of giving hearing at the District Head Quarter i.e. at Alibag, which is nearly 100 kms away from the site, and thereafter, it had given its clearance on 7th April, 2005. This clearance was granted in mechanical manner. Dissatisfied by the action, the Petitioners approached Grampanchayat raising their protest but nothing much could be done about the same at that level and finally the Petitioners led a Morcha on 27th October, 2007 as the Authorities have violated the provisions of [ACT]. Vide their letter dated [SECTION]st November, 2007, the Petitioners' Advocate wrote a detailed letter stating therein various violations of the conditions and also requested for revocation of the clearance granted. In reply thereto, Respondent No.1 addressed a letter dated 8th February, 2008 to the Chief Conservator of Forests, Ministry of Environment and Forests, Regional Office, Kendriya Paryavaran Bhavan, Link Road No.3, Ravishankar Nagar, Bhopal, requesting for inspection of the Dighi Port Development Projectand verify the compliance of conditions stipulated under the environmental clearance and submit report. On 12th March, 2008, a meeting was convened by the Collector wherein the members of the Petitioners organization were present. In the said meeting, it was concluded that a joint visit of the Government officials and members of the petitioner organization would be undertaken and till such time, there was understanding that no development work would be carried out. Thereafter, on 25th May, 2008 a meeting was convened wherein representatives of the Petitioner Organization along with their two advocates were present but Respondent Nos.8 to 10 did not listen to anything and in the compelled circumstances, the Petitioners walked out of the said meeting. The villagers of the village Rajpuri even assaulted the advocates. These incidents were also covered by the newspapers. In November, 2008, operation of blasting of rocks and hills was undertaken by Respondent No.6, as a result of which serious damages and cracks were caused to the houses of the villagers. Various protests raised by the Petitioners inviting attention of the Authorities but could not persuade the authority to act and/or withdraw the clearance granted on 30th September, 2005. Aggrieved against this inaction on the part of the Respondents, the Petitioners claimed that they came to know about grant of clearance much subsequently and having failed to persuade the Authority concerned, they have approached this Court on the ground that issuance of Notification is violative of [SECTION] [SECTION] and [SECTION] of the [ACT]. It violates human rights, rights relating to life, liberty, interests and welfare of the citizens. They blamed Respondent No.1 inasmuch as the doctrine of public trust has been violated as it places an obligation upon the State to protect the interests of general public at large rather than private ownership.
6. To this, separate affidavits-in-reply were filed by Respondent Nos.1, 2 and 4, 3, 5 and 6. According to Respondent No.1, the proposal for infrastructure Development and Miscellaneous Projects was considered by Expert Committee on 19th May, 2005 and 7th July, 2005. The said Committee examined the proposal in detail and based on the recommendations of sub-Committee of Maharashtra Coastal Zone Management Authority and No Objection Certificate from Maharashtra Pollution Control Board, clearance was granted after giving public hearing in terms of Notification dated 14th September, 2006. Therefore, according to Respondent No.1, there is no statutory violation as regards to the grant of clearance and the Petition is without any merit.
7. According to Respondent Nos.2 and 4, the lands in Dighi were acquired and award was made on 24th April, 1984 and the possession of the lands had already been taken on 25th May, 1982.
The Revenue record entry was mutated on 6th November, 1982, and for the first time, objection was raised by the Petitioners in the months of August and October, 2007 while the present Petition has been filed in the year 2009 which suffers from defect of delay and laches. The other Respondents including Respondent No.3 have raised the plea that the Petitioners could have approached the concerned Authority under the [ACT] raising the grievance. It is the case of the respondents that the expansion and/or development of a Port is permissible activity under the provisions of [ACT] as clearly postulated under the Notification issued by the Central Government on 9th July, 1997 for development of trade, commerce and for economic growth development of Dighi Port it is imperative and essential and it in no way affects the interests and fishing rights of the villagers of Dighi and also does not violate any constitutional provisions.
8. As already noticed, separate affidavit has been filed on behalf of Respondent No.5. According to Respondent No.5, notice of public hearing as per the provisions of the Environment Impact Assessment Notification dated 27th January, 1994 was given in Marathi and English newspapers on 30th September, 2004. Necessary documents pertaining to the proposed project were kept at Collector's office, Raigad; Environment Department, Mantralaya; MPCB, Regional Office, Sion; and Sub-regional Office at Mahad; CEO, Zilla Parishad, Raigad; GM, District Industries Centre, Raigad; Panchayat [ENTITY] and Sarpanch Group Gram Panchayat, Dighi. This public hearing was conducted under the Chairmanship of Sub-
Divisional Magistrate, Mahad on 2nd November, 2004 where the representatives of respondent No.6 were present along with 48 persons from surrounding areas. The people made suggestions as regards the traffic, parking and operations of small boats and request for supply of drinking water, queries as regards adverse impact of fishing activity were made. Objections were recorded in the public hearing proceedings and dealt with and finally consent was granted on 7th April, 2005 and copy was sent to the Competent Authority which finally issued clearance in question dated 30th September, 2005.
9. According to Respondent No.6, the Petition lacks bonafide of genuine public interest and is not intended to serve larger interest to the public. The President of Petitioners recently had sold 45 gunthas of land whereas the Secretary of the Petitioners was a broker.
10. We have to examine the grounds of challenge raised by the Petitioners in light of the above factual matrix of the case. Right from the decision in the case of S.P. Gupta v. [ENTITY], reported in AIR 1982 SC 149, the Supreme Court has held that it may now be taken as well established principle that where a legal wrong or a legal injury is caused to a person or to determinate class of persons by reason of violation of any constitutional or legal right or any burden as reason of violation of any constitutional or legal provisions or without authority of law or any such legal wrong or legal injury or legal burden is threatened and such person or determinate class of persons by reason of poverty, helplessness of disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under [SECTION] of the [ACT]. This principle had continued till date and in fact is the origin of public interest litigation. The ingredients of Public Interest Litigation like locus standi to any member of the public, relief against public wrong or public injury, dominant object being public interest or public good and besides that it should also satisfy essentials of a public interest litigation which would justify judicial interference or intervention.
11. In judicial process regulated by the [ACT], many larger disputes or issues demand judicial intervention and the rule of law requires to ensure that all persons are able to live securely under rule the of law, to promote within the proper limits of the judicial functions and observance and attainment of human rights and administer the law impartially amongst the persons and between persons and the State. (Reference : "Nature of Judicial Process", speech by Justice [ENTITY] [(2002) 6 SCC (J) 1]). The public interest has been understood as interest of a larger section as opposed to an individual interest and has the element of affecting greater section of the society. The expression 'public interest' means act beneficial to general public. It means action necessarily taken for public purpose. There is thus much in common between public interest and public purpose. The expression 'public purpose' is not capable of precise definition and has not a rigid meaning. It can only be defined by a process of judicial inclusion and exclusion ([PRECEDENT]). However, a broad test has been formulated and it is that "whatever furthers the general interest of the community, as opposed to the particular interest of the individuals, must be regarded as a public purpose". The expression "interest of the general public" embraces public security, public order and public morality. ([PRECEDENT]).
It will not be out of place to mention here something about "public policy". Public policy is a principle of judicial legislation or interpretation founded on the current needs of the community. The interest of the whole public must be taken into account. ([PRECEDENT]). (Reference : "The Phantom of 'Public Interest', article by Prof. (Dr) [ENTITY], [1986] 3 SCC (J) 30]).
12. All these principles have been stated and restated by the Courts including the Supreme Court. In the case of [PRECEDENT], where the Supreme Court was dealing with the question of town planning and sanction of development plan with particular reservation in a public interest litigation, stated as under :-
"11. ig At this point of time, the public interest litigation came to be filed on 19.5.1999 knocking the doors of the High Court when it was closed for summer vacation. The High Court felt that the issue raised in the petition calls for its attention. Notices were issued to CIDCO and other respondents. By an interim order proceedings for acceptance of the tenders and thereafter were directed to remain stayed. The High Court soon realized that the issue of public interest raised in the writ petition required the conduct of the case not to be left in the hands of the writ petitioner alone, and therefore, by its order dated 7.12.1999 appointed an amicus curiae to assist the Court. However, a little later it was brought to the notice of the High Court that the original writ petitioner was not carrying on well with the amicus curiae and to avoid the conflict the High Court chose to proceed with the hearing of the petition dispensing with the assistance of the amicus curiae. The fact remains that the litigation had assumed the character of a public interest litigation of wider scope, not necessarily confined to grievance raised by the writ petitioner and the High Court was intervening to bring under its scrutiny, on the well- settled parameters of public interest, the proceedings of CIDCO relating to attempted disposal of developable land. While hearing a public interest litigation the constitutional court acts as a sentinel on the qui vive discharging its obligation as custodian of the constitutional morals, ethics and code of conduct - well defined by a series of judicial pronouncements. The Court is obliged to see while scrutinizing the conduct and activities of a public body constituted with the avowed object of serving the society to see that its activities bear no colour except being transparent, are guided with the object of public good and are within the four corners of law governing the same. The holder of every public office holds a trust for public good and therefore his actions should all be above board. Whatever may have been the grievance raised in the writ petition filed by the original writ petitioner, vide its order dated 28.4.2000 the High Court framed the following four questions laying down the scope of hearing before it.
(a) Whether CIDCO should be allowed to resort to bulk land sale as a normal course of its activities ?
(b) Whether such an action by CIDCO is permissible in the public interest vis-a-vis its objectives ?
(c) Whether the bulk land sale transactions made in the recent past and more particularly after the petitioner has approached this Court have been dubious in nature and they have been made by giving a go-by to the Rules and Regulations as well as objectives of CIDCO ?
(d) Whether the plots have been allotted at a price much lowe4r than the base price and this has resulted in a substantial loss to CIDCO ?
We have set out the abovesaid part of the High Court proceedings to meet the plea raised by the appellants before us which complains of want of pleadings and denial of necessary opportunity of defending themselves at the hearing in the writ petition. The High Court had, by having framed the abovesaid questions, put all the parties before it on notice that it proposed to enter into issues wider than what may have been raised in the writ petition filed before it. The non-petitioners in the High Court, including the appellants before us, were put on notice of the issues on which the High Court proposed to dwell upon and they were allowed full opportunities of defending themselves by bringing in such pleadings and documents as they proposed to do in their defence. The High Court called for the record of CIDCO and subjected the same to scrutiny under its magnifying glass of judicial review. The non-petitioners in the High Court were well aware of CIDCO's record of proceedings and the findings of the High Court are based on the facts discernible from the records and the factual inferences necessarily and inevitably flowing therefrom. In public interest litigation jurisdiction of the constitutional court is mobilized and acts for redressal of public injury, enforcement of public duty, protection of social rights and upholding constitutional and democratic values. Technicalities do not deter the court in wielding its power to do justice, enforcing the law and balancing the equities. We are unhesitatingly of the opinion that the appellants before us cannot raise any grievance on the ground of want of necessary pleadings."
13. Even a Bench of this Court had discussed in some detail the ambit and scope of maintainability of a Public Interest Litigation and to what extent the Court can interfere. Usefully, reference can be made to the judgment in the case of Dr. M. M. Furquan v Jet Airways India Ltd.
And others, 2008 (1) MhLJ 6, where it has been held as under :-
"It is settled principle of law that public interest litigation is a weapon which has to be used with great care and circumspection. The courts have to be careful while entertaining such writ petitions. In the case of Rajiv Ranjan Singh Lalan (VIII) and anr vs [ENTITY] and ors, (2006) 6 SCC 613, the Supreme Court has held as under :-
" The learned Solicitor General further submitted that there had been no interference by Mr. [ENTITY] or his wife in any of the matters whether in the appointment of Judges or in the change of the prosecutor or in the decision not to file an appeal in the income tax cases. The learned Solicitor General cited T.N. Godavarman Thirumulpad (98) v [ENTITY] (2006) 5 SCC 28 (Hon. [ENTITY] C.J. And [ENTITY] and [ENTITY], JJ.) and submitted that : (SCC p 37, para 23) :
Howsoever genuine a cause brought before a court by a public interest litigant may be, the court has to decline its examination at the behest of a person who, in fact, is not a public interest litigant and whose bona fides and credentials are in doubt (and that) no trust can be placed by the court on a mala fide applicant in public interest litigation."
The learned Solicitor General submitted that now it is time to give a severe warning and sound alert since these are basic issues which are required to be satisfied by every public interest litigant. He also cited paras 25 and 26 in support of the contention that the writ petition is not maintainable at the instance of the political rivals.
My [ENTITY] in regard to the maintainability of the writ petition cited the following decisions :
i) [PRECEDENT] :
"109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL, will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating an personal grievance, deserves rejection at the threshold";
ii) Dattaraj Nathuji Thaware vs [ENTITY], (2005) 1 SCC 59) (Hon. [ENTITY] and Hon. [ENTITY], JJ.) and invited our attention to paras 4, 5, 9, 10, 12 and 14.
iii) Ashok Kumar Pandey vs State of W.P. (2004) 3 SCC 349 (SCC p 357 para 12) :
"12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity-seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public inquiry and not publicity-
oriented or founded on personal vendetta. As indicated above, court must be careful to see that a body of persons or a member of the public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motive. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate case, with exemplary costs."
iv) S.P. Gupta v [ENTITY] (1981 Supp.
SCC 87 (7 Judges) SCC p [SECTION]9 para 24) "24. But we must be careful to see that the member of the public who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. [ENTITY] has warned that 'political pressure groups who could not achieve their aims through the administrative process' and we might add, through the political process, 'may try to use the courts to further their aims'. These are some of the dangers in public interest litigation which the court has to be careful to avoid. It is also necessary for the court to bear in mind that there is a vital distinction between locus standi and justifiability and it is not every default on the part of the State or a public authority hat is justiciable. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the executive and the legislature by the [ACT]. It is a fascinating exercise for the court to deal with public interest litigation because it is new jurisprudence which the court is evolving, a jurisprudence which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born".
The courts while exercising jurisdiction and deciding a public interest litigation have to take great care, primarily for the reason that this wide jurisdiction should not become a source of abuse of process of law by a disgruntled litigant. The courts have also held that no efforts should be spared in fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed. It has to be a genuine litigation, unmotivated and imposes an obligation upon a litigant to come to the court with true facts and clean hands. Public interest litigations result in taking large court's time, which could not be used by the court for the benefit of common litigant. Thus it is more imperative that petitions which are bona fide and further the public cause alone should be entertained in this category."
14. The Public Interest Litigation besides the above principles has to be a bona fide Writ Petition and should not be intended to sub-
serve the private purpose. In light of the above principles, if we examine the present case, it can in no way be said that it is an abuse of the process of the Court, Petition lacks the bona fide or that it does not specify any of the ingredients of a Public Interest Litigation. The very fact that so many Government Departments are involved in the process of clearance or issuing no objection certificates to Respondent No.6 before starting and commencing its project itself is sufficiently indicative of the fact that it is a matter of some importance and is likely to affect either way the environment, ecology and public interest of the residents of that village. Thus, we find that the objection raised by the Respondents in regard to the maintainability of the Petition or the locus of the Petitioner does not have any merit and is hereby rejected.
15. Coming to the plea of delay and latches, it is true that delay and latches is a ground which has to be effectively considered by the Court while entertaining Writ Petitions but this principle is appropriately applied in Writ Petitions dealing with individual interests. Such plea stricto senso can hardly be applied to Public Interest Litigation unless and until the delay in approaching the Court is mala fide and its entertainment would imbalance the equities between the affected parties to the extent of causing injustice which the conscience of the Court does not permit or its economic effect is such that it will be more appropriate for the Courts to reject the Petition on that ground. None of these factors are satisfied in the present case.
According to the Petitioner, they came to know of the clearance of year 2005 and could receive the documents through Gram Panchayat only in the year 2007 where after they made representation, took out public morchas and thereafter have approached the Court. Certainly, there is some delay but it is not a case of patent inordinate delay where the Petitioners have slept over their rights totally and have approached the Court mala fide. Particularly in relation to environmental matters, the approach of the Court has to be somewhat liberal. Successful environmental policies require many things, the most vital being the support of the common masses and that happens only if there is an ethical commitment to environmental values. (Reference :
"Environmental Protection and Sustainable Development :
Exploring the Dynamics of Ethics and Law" article by [ENTITY] in Journal of the Indian Law Institute, Vol. 49 No.1, page
16. Besides this, the scope of judicial review in Public Interest Litigation has enlarged with the passage of time. The Supreme Court was concerned with the regulation providing for green/open spaces in respect of re-development of mill lands in the city of Mumbai and commenting upon the scope of judicial review, the Court in the case of [PRECEDENT], held as under :
"118. It is interesting to note that the scope of judicial review is now being expanded in different jurisdictions. Even judicial review on facts has been held to be permissible in law. (See [PRECEDENT]; Sonepat Coop. Sugar Mills Ltd. V Ajit Singh 2005) 3 SCC 232 and Cholan Roadways Ltd v G. Thirugnanasambandam (2005) 3 SCC 241).
xxxxx xxxxx xxxxx 122. The Wednesbury principles to which
reference has been made in [PRECEDENT] in some jurisdictions are being held to be not applicable in view of the development in constitutional law in this behalf. See e.g. [PRECEDENT], wherein referring to [PRECEDENT], it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full- blown merits judgment, which is yet more than ex p Daly requires on a judicial review where the court has to decide a proportionately issue. Law is never static; it changes with the change of time. (See [PRECEDENT] and John Vallamattom v [ENTITY], (2003) 6 SCC 611."
17. In the present case, the Petitioner has specifically pleaded that there is violation of law by the Respondents inasmuch as they were not granted public hearing as contemplated under the Act and the Notification and even the conditions imposed under the specific laws have been violated and furthermore the permission granted under different Acts have been granted in a casual and routine manner without proper application of mind. In light of these averments, of course subject to they being correct, the Courts will have jurisdiction to entertain matters of such significance as it is the duty of the Court to ensure that the Rule of law is maintained. In the case of Indian Council for Enviro-Legal Action v [ENTITY] and others, (1996) 5 SCC 281, the Court held as under :-
"26. Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adopting of such means which are best known to the violators of law.
Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society.
Law should not only be meant for the law-abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that Parliament enacted the [ACT], namely, the [ACT], [ACT] and the [ACT]. These Acts and Rules framed and notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of [ACT] not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations."
18. Having commented upon the issue of locus and maintainability of the Petition, now we shall proceed to discuss the merits of the case in relation to factual matix. The main argument raised by the Petitioner before us related to reclaiming the land and sand hills by Respondent No.6 for construction and development of the Port. It was pleaded by them before the authorities concerned as well as in the Writ Petition that the Respondents are doing such activity without leave of the competent authority and in fact are acting contrary to law. This is disturbing the ecological and aesthetic qualities of sea coast area besides that it is adversely affecting the local life. This has been denied by the Respondents. According to them, whatever land they have reclaimed from the sea and sand-hill, they have done it strictly in accordance with the permissions granted by the concerned authorities. The clearance was granted to Respondent No.6 by the competent authority vide their letter dated 30th September 2005 and in that letter, Condition No.(xvii) read as under :-
"(xvii) No land reclamation should be carried out for this project."
19. From the bare reading of the said Condition, it is obvious that no land could be reclaimed for carrying out the project. The Petitioner has annexed photograph at Page 107 of the Writ Petition showing that the sand is being put into the sea for the purposes of reclaiming the land and there is clear violation of the conditions imposed. This argument apparently is incorrect but is based upon a misconception of fact inasmuch as the above Condition No.(xvii) stood substituted by the following condition which was communicated to Respondent No.6 by the Additional Director Government of India, Ministry of Environment and Forest vide letter dated 26th December 2005 and the substituted condition reads as under :-
"(xvii) Reclamation within the Port area shall be carried out (+) 5 metre level from the existing ground level. The material for reclamation shall be mainly from the dredged material and the rest should be sourced from approved government areas in the vicinity. Further, the details pertaining to reclamation in the inter-tidal area should be provided to this Ministry within 3 months from the date of receipt of the letter."
According to Respondent No.6, they have strictly complied with the said condition and this has also been verified by the concerned authorities. In the reply affidavits filed by different public authorities and the Government, it is no where stated that the substituted Condition No. (xvii) has been violated by Respondent No.6 in any manner whatsoever. In face of these facts appearing on the record, we are unable to accept this contention of the Petitioner.
20. Next argument raised on behalf of the Petitioner relates to the effect of not granting appropriate public hearing to the affected persons which is a mandatory requirement. As a result thereof, there is infirmity in complying with the statutory requirements.
Consequentially the permission granted is vitiated in law. There is no doubt that compliance to the condition of public hearing is mandatory.
Notifications have been issued under [SECTION] of the [ACT] for imposing certain restrictions and prohibitions on new projects or activities to examine the potential environment impact of such project and the need for environmental clearance. It is legally required of the projects specified to take prior environmental clearance as per the regulatory authorities. An application seeking prior environment clearance in a case has to be made in the prescribed Form 1 annexed to the Notification. [SECTION] of consideration of this application provides for the public consultation and refers to the process and procedure which should be adopted by the concerned authority to hear affected persons and others who have plausible stake in the environmental impacts of the project or activity ascertained with a view to taking into account all material concerns in the project or activity designed as appropriate. [SECTION] relating to Public Consultation contemplates a public hearing at site or in its close proximity, district wise to be carried out in the manner prescribed in [SECTION] for ascertaining objections of the locally affected persons. [SECTION] places an obligation upon the authorities to conduct public hearing in a systematic time bound transparent manner ensuring widest possible public participation at the project sites or in its proximity district wise. The panel constituted has to hear the persons and before giving the clearance, the views have to be given their due regard. The objections raised have to be considered by the authorities. It is, therefore, required of the authorities to follow this procedure before issuing environmental clearance and a proper body has to be constituted for this purpose.
The Maharashtra Pollution Control Board, vide its Office Order dated 15th October, 1994 in compliance of Notification No.318(E) dated 10th April, 1997 of Ministry of Environment and Forests, Government of India had constituted a panel for examining the objections in relation to Dighi Port project, Exhibit 2, to the reply of Respondent No.5. The learned Counsel appearing for the Petitioner suggested that this was not a properly constituted panel inasmuch as representative of [ENTITY] was not to be a member of the Panel in terms of the Officer Order dated 15th October, 1994. The essential requirement of the panel is that a representative from Environment Department and Maharashtra Pollution Control Board have to be members of the panel which is to be chaired by a District Collector.
Even if for the sake of argument it is assumed that the representative of [ENTITY] was not to be a member of the panel, it can hardly be said that his inclusion in the panel would have caused prejudice of any kind. According to the Respondents and as stated in their reply affidavits, it heard the objections after giving due notice at public places including the office of Panchayat of Village Dighi. Then the objections were heard and finally Notification dated 30th September, 2005 was issued. In the declared Notification, Clause 3 which deals with the composition of the public hearing panel uses the expression 'may' and explains various persons who could be members of the panel. Member of the local bodies, Municipalities, Panchayat could be members. Representative of the State dealing with the subject and representatives of the Pollution Control Board in addition to the District Collector or his nominee were also to be in the panel. The expression 'may' has to be given its true and correct meaning and not a strict meaning which would render the provision inapplicable. The panel that was constituted by the Ministry itself, in our opinion, does not suffer from any legal infirmity inasmuch as the representative of the local bodies, senior citizens and the Government and Pollution Control Board representatives were also there in the panel. Thus, there is substantial compliance to this provision and would not call for interference by the Court on that account.
[SECTION]. The concept of public hearing is intended to achieve a greater objectivity. The affected persons and even other persons are entitled to raise objection with regard to grant of sanction/ environmental clearance to an applicant in the event of the notified projects. As already noticed, there is no dispute raked up before us by any party that grant of public hearing was necessary. In fact, according to the Petitioner, this was done cosmetically, while, according to the Respondents, they had strictly complied with the said requirement of public hearing in accordance with law. With reference to the provisions afore-indicated, the intent of the framers appear to be that the public hearing should be granted at the site or the nearby places in close proximity. The purpose is to enable particularly the affected persons to put forward their suggestions and objections which must be treated very objectively by the authorities concerned. It is not public hearing of objections but is public consultation. The expression 'public consultation' conveys a meaning of taking public into confidence to ensure that the environment or ecology of the area is not so disturbed that it would adversely affect persons living around the area. From the reply affidavits filed by the respective Respondents, it appears that the above hearing did not take place at the site or in the areas nearby but at the district headquarters. In fact, the public hearing was held at Collector's office in Raigad-Alibag which we are informed is nearly 100 kms away from the site in question or village Dighi. This appears to us not proper compliance to the requirements of law. It would have been more appropriate for the authorities to hear the people on the site in terms of the above provisions or at best in the public places of the village concerned or at a place which was not so far away from the site.
Public consultation would not only include hearing objections but even the suggestions which may be made by the affected persons or even any other person having an interest. It is not strange or unusual that public spirited persons connected with environment and ecology of the area could make suggestions which may prove useful and would help in implementation of the project with better results ensuring greater protection to environment. After such hearing, the clearance notification was issued. There is some irregularity in compliance with the provisions of public consultation but that essentially would not violate the final Notification issued by the authorities as the Petitioners were heard in the year 2004 and, firstly they cared to come to the courts in the year 2009 and, secondly, no prejudice has been demonstrated in the Writ Petition which has resulted from this particular irregularity. The irregularity is not per se an illegality so as to vitiate the final order inasmuch as admittedly hearings were held and even the Petitioner and his representatives participated in those hearings, but consultations were not held on the site or nearby. It would have been better that the people were heard at the site as well as at the head quarters to achieve better results and for proper adherence to the provisions of the Notification issued by the Government itself.
22. The Petitioners and some of their representatives had participated during public hearing and had assured that they would assist the progress of the project. That being so, they can hardly be heard now to argue that the project should be stalled now at this juncture. We have already noticed that Expert Bodies have given environmental clearance and there is no justification for this Court to stop the progress of the project.
23. Even the affidavit filed on behalf of Respondent Nos.2 and 4 dated 4th May, 2009 is also completely silent on this vital aspect.
24. The purpose of granting a public hearing is to ensure environmental protection. The Expert Body like Maharashtra Pollution Control Board and experts in the Ministry of Environment and Forests have examined various aspects of the matter. The issues were deliberated upon and discussed at the meeting as is evident from Exhibit - 3 dated 24th December, 2004 to which minutes of the public hearing dated 2nd November, 2004 have been annexed. Names of various persons who raised objections, the points raised by them and the views of the Authorities have been mentioned in the said Exhibit-3.
The obvious result thereof is that the Authorities have correctly come to the conclusion that in the facts and circumstances of the case, environmental clearance needs to be granted in favour of the Respondents. The Court would not sit as an Appellate Authority as it has no expert means and tools to examine whether the view of the Expert Authority is correct or not. Such matters are better left in the discretion of the Expert Body unless there were some extra ordinary compelling circumstances which certainly do not exist in the present case.
25. In the case of N.D. Jayal v. [ENTITY], (2004)9 SCC 362, the Supreme Court held that it cannot sit in judgment over the opinion of experts which had the cutting edge of scientific analysis and when the Government or the authorities concerned after due consideration of all viewpoints and full application of mind take a decision, then it is not appropriate for the Court to interfere in such matters and it must be left to the mature wisdom of the Government or the implementing agency as it is their forte.
26. In view of the above discussion, we have no hesitation in coming to the conclusion that the Notification is not vitiated for this partial irregularity. However, we direct the State Government to conduct public consultation (public hearing) in all such cases relating to environmental clearance for notified projects at the site or nearby the area of the site, as, that is the true import of the provisions contained in the Notification dated 14th September, 2006 issued by the Government of India. This direction is necessary in order to achieve the object and purpose of the Notification. We order accordingly.
27. Now we will proceed to discuss very important aspect of this case which relates to the conditions imposed by the Competent Authority in relation to ensure proper water supply to the villages as well as not interfering with the underground water of the area.
According to the Petitioners, the Respondents are not properly adhering to any of the conditions stipulated in the impugned sanction and in relation to the water as well as welfare measures. Respondent No.6 has contended that they have made due provisions for compliance with the conditions even in this regard and there is no violation on their part. In the impugned clearance dated 30th September, 2005, the Company was directed to take socio-economic development and welfare measures and besides that in relation to the matters involving water in the CRZ area and otherwise, the following conditions were imposed.
"(xiii) There should be no withdrawal of ground water in CRZ area, for this project. The proponent shall ensure that as a result of the proposed constructions, ingress of saline water into ground water does not take place. Piezometers shall be installed for regular monitoring for this purpose at appropriate locations on the project site.
(xiv) The project should not be commissioned till the requisite water supply and electricity to the project are provided by the PW/D/Electricity Department.
(xv) Specific arrangements for rainwater harvesting should be made in the project design and the rain water so harvested should be optimally utilized. Details in this regard should be furnished to this Ministry Regional office at Bhopal within 3 months."
28. From the above conditions, it is abundantly clear that the Respondents had to comply with the said conditions and definitely prior to commissioning of the project. According to the Petitioners, these conditions have not been adhered to and no provisions have been made for supplying the water to the village in question. According to the Respondents, they are providing water by tankers without any payment from the villagers and would finally provide for the scheme for regular and permanent supply of water in the village. Thus, they have every intention of complying with the conditions imposed in the impugned clearance. It may be noticed that in the public consultation of public hearing held on 2nd November, 2004, one Shri [ENTITY], Wadavali, had raised this issue. The water and electricity problem of the village was discussed at in some details and he stated that he was aware of the water scarcity in the village and that there was a proposal to bring water by tankers from outside sources during construction phase of the project. He further informed that water sources of the villages will not be used at all. This problem was even highlighted by Shri [ENTITY], Chairman of Dighi Koli Samaj. He stated that the villagers assured that they will cooperate with the progress of the project and assist in all matters but the problem of the villagers should be attended to. Respondent No.6 even, vide their letter dated 15th March, 2008, submitted reply to the points raised by the Additional Director, Government of India, for compliance with the specific conditions and general conditions as stated in the environmental clearance and the reply to the following points can usefully be noted at this juncture.
"Query : The Company must take up and earmark adequate for the socio-economic development in and the welfare measures in the areas including drinking water supply, vocational training, and fishery related development programs (like cold storages).
Answer : The actions on socio-economic issues such as, financial support to the existing school, provision of ambulance, advantage to the local entrepreneurs for bauxite handling, etc. are already complied with. Also the actions on issues such as hospital for medical health, drinking water availability, vocational training, port cluster development for economic growth of the region are in planning stage.
Query : The project should not be commissioned till the requisite water supply and electricity to the project are provided by the PWD/Electricity Department.
Answer : (a) Applications have been submitted for obtaining drinking water supply and construction water supply vide this office ig letter No.DPL/VGK/MJP/WaterConn/ 2008/22 dated 25.1.2008 and DPL/VGK/WRD/ WaterConn/ 2008/15 dated 25.1.2008 respectively.
(b) Application has been submitted to MSEB for obtaining requisite electric supply."
29. Though the construction of the project has been in progress now for a considerable period, but from the above it appears that Respondent No.6 has not taken the desired interest in taking steps for complying with the conditions in this regard. It was expected of Respondent No.6 to provide water scheme and ensure that water and electricity is supplied to the village. In fact, mere assurances in contradiction to any steps on the site, is an indication of Respondent No.6 of not complying with the conditions in their true spirit and substance. It was expected of Respondent NO.6 to have taken complete steps to ensure that water and electricity supplied to the villages as contemplated under the terms of clearance had been fully implemented by now. It appears from the record that during the course of deliberations on the matter of water, electricity, socio-
economic development and welfare measures taken by Respondent No. 6 to the benefits of the residents of Village Dighi, the intent of the clearance certificate is obvious that the State and the Competent Authorities which are under obligation to provide these basic needs of life of the villagers are duly protected under [SECTION] of the [ACT] in terms shifted it to Respondent No.6. We have no doubt in our mind that such conditions are intended to achieve not only social object but a constitutional mandate to ensure dignified living for the affected community of the village. Ignoring or dilly dallying the implementation of such conditions on one pretext or the other, in our view, would tantamount to violation of the conditions.
The project may take time to be commissioned but water supply to the village ought not to wait that long. The lethargy on the part of the concerned departments certainly demonstrates their apathy in the functioning and attitude of the Authorities who need to be quite concerned with providing of water and ensuring implementation of the conditions in regard to the electricity as well. Even during the course of arguments, there was no opposition to the obligations of Respondent No.6 to provide water facility and not to tamper in any manner whatsoever with the underground water of the village. It may be in the larger public interest to complete the project at the earliest as considerable amounts have already been spent and stoppage of project at this stage may result in serious financial losses not only to Respondent No.6 but even to the public Authorities. The larger public interest would demand in preference to the interests of limited persons that the project should be permitted to be completed at the earliest. It is also pointed out before us that six monthly report has been prepared by the concerned Authorities in relation to the implementation of the conditions contained in environmental clearance. Of course, no such report was placed on the file by the Authorities and nothing is clear from the affidavits of the Authorities as to what steps, with regard to the adherence to the conditions related to the water supply and electricity etc. are taken. In the affidavit filed on behalf of Respondent No.6, economic and financial importance of the project has been indicated. But the affidavit does not specifically deal with regard to the compliance of the above noted conditions.
According to them, they have already entered into a contract and executed the same approximately for an amount of Rs.1000 crores and they have invested approximately Rs.300 Crore in development of the activities towards the condition of the Port. This may be some of the factors which would tilt equitable jurisdiction of the Court in favour of Respondent No.6 and other public Authorities but such tilting has to be conditional on they strictly complying with the conditions of the environmental clearance. There is no scope for this Court to take any lenient view on that count and we direct Respondent No.6 in particular and all the Authorities including the Central Government and the Maharashtra Control Pollution Board to ensure that the water supply scheme should be fully implemented within a period of six months from today and so should be the scheme for the electricity supply as required under the conditions and in any case there shall be a prohibition upon all the Respondents from commissioning the project at the Port without fully satisfying these conditions.
30. For the reasons afore-recorded, the Public Interest Litigation is disposed of with a specific direction that Respondent No.6 in particular and all the Authorities including the Central Government and the Maharashtra Control Pollution Board to ensure that the water supply scheme should be fully implemented within a period of six months from today and so should be the scheme for electricity supply as required under the conditions. In any case there shall be a prohibition upon all the Respondents from commissioning the project at the Port without fully satisfying these conditions. Rule discharged but subject to above directions. There shall be no order as to costs.
CHIEF JUSTICE [ENTITY], J