1 MCA.73 of 2011 IN THE HIGH COURT OF BOMBAY AT GOA MISC. CIVIL APPLICATION NO. 73/2011 IN PIL WRIT PETITION NO. 14 OF 2010 GOA FOUNDATION, THROUGH ITS SECRETARY, DR. CLUDE ALVARES. ........ Applicant. V/s GOA CRICKET ASSOCIATON THROUGH ITS SECRETARY AND ORS. ....... Respondents. Mrs. Norma Alvares, Advocate for the applicant. Mr. S.G. Dessai, Senior Advocate with Mr. S. Naik, Advocate for respondent No.1. Mr. S. S. Kantak, Advocate General with Mr. P. Talaulikar, Addl. Govt. Advocate for respondents No.2 and 3. CORAM :- S.B. DESHMUKH & F.M. REIS, JJ. Date :- 25th January, 2011. P.C. : - We have heard learned Counsel appearing for the respective parties. 2 MCA.73 of 2011 2. Before adverting to the submissions of the learned Counsel for the respective parties in this civil application, we may refer to PIL Writ Petition No.14/2010 i.e. some date, events and orders passed by this Court in PIL W.P.No.14/2010. The PIL Writ Petition is filed by the applicant-petitioner on 23rd December, 2010. The petitioner is a society, registered under the provisions of the Societies Registration Act, 1960. On the date of the filing of the writ petition, there were only two respondents, namely Goa Cricket Association, through its Secretary and State of Goa, through Chief Secretary. The PIL Writ Petition seeks a writ against respondent No.1 to restore the land to its original status. We have also considered the interim orders sought for in this writ petition. This writ petition is supported by an affidavit (page 43) sworn in by Dr. Claude Alvares. A copy of the registration certificate of the petitioner society is annexed with this affidavit along with a true copy of the resolution of the petitioner society. 3. The PIL Writ Petition was mentioned before this Court on 23.12.2010, factually the last working day of this Court before the Christmas Vacation – 2010. We have seen the order passed by this 3 MCA.73 of 2011 Court on 23.12.2010. By this order, this Court had granted permission in favour of the petitioner to move the petition before the learned Vacation Judge during the Christmas vacation. 4. It appears from the record that the petition was accordingly moved during the Christmas vacation i.e. on 27th December, 2010 before the learned Vacation Judge. Order dated 27th December, 2010 shows that the learned Counsel Ms. Alvares who appeared for the petitioner, learned Senior Advocate Mr. S. G. Dessai, who appeared for respondent No.1 and the learned Advocate General Mr. S. S. Kantak, who appeared for respondents No.2 and 3 were heard. This order records in paragraph 8, the statement made by learned Senior Advocate Mr. Dessai, which reads : “However, Mr. Dessai states that without prejudice to the rights and contentions of respondent no.1, respondent no.1 is ready to discontinue the said work if the matter is taken up expeditiously.” The said statement made by the learned Senior Advocate Mr. Dessai in the presence of Shri Prasad Fatarpekar, Secretary of Goa Cricket Association was accepted by this Court and recorded in that order passed on 27.12.2010. 4 MCA.73 of 2011 5. On 31st December, 2010 this petition was again before the learned Vacation Judge of this Court. Earlier statement made by the learned Senior Advocate Mr. Dessai, referred to and renewed by the learned Senior Advocate Mr. Dessai was accepted, taken on record and after hearing the learned Counsel appearing for the respective parties, the matter was directed to be placed before the regular Court for further hearing on 5th January, 2011. Undisputedly, statement made by the learned Senior Advocate Mr. Dessai on behalf of respondent No.1, recorded for the first time in the order passed by this Court (Coram: A.P. Lavande, J.) on 27th December, 2010 has been renewed from time to time. Last such order, we have noticed from the petition, is of 17th January, 2011 and the matter was adjourned to 18th January, 2011. 6. We have seen the order passed on 18th January, 2011 which is passed in the present civil application i.e. MCA No.73/2011 in PIL WP No.14/2010. On that day, hearing of this misc. application and the PIL Writ Petition was adjourned to 24th January, 2011. The earlier statement made on behalf of respondent No.1 was renewed on that day 5 MCA.73 of 2011 and is in operation. Yesterday i.e. 24th January, 2011 by consent of the Counsel appearing for the parties, the matter was adjourned to today i.e. 25th January. Undisputedly, the statement made on behalf of respondent No.1 by Senior Advocate Mr. Dessai since beginning is on record, continued from time to time and is in operation till today. 7. On behalf of the petitioner, initially schedule seeking amendment and/or draft amendment was tendered on 14.1.2011. Along with this schedule/draft amendment, an affidavit sworn in by Dr. Claude Alvares was also tendered and is part of the record. After hearing the Counsel for the respective parties, this Court opined that Misc. Civil Application seeking amendment may be formal in nature, needs to be filed by the petitioner. That is how the present application i.e. MCA No.73/2011 running in two pages, annexed thereto a white sheet, is filed and is before us for consideration. Copies of this application are served to the learned Counsel appearing for the respective respondents. 8. On behalf of respondent No.1, an affidavit in reply is filed 6 MCA.73 of 2011 on 17th January, 2011, opposing the proposed amendment, sworn in by Mr. Prasad Vinyak Fatarpekar, Secretary of respondent No.1. Though the said affidavit is filed opposing the amendment, it is numbered as PIL Writ Petition No.14/2010 instead of Misc. Civil Application No.73/2011 and that is why the said affidavit dated 17.1.2011 has been filed in PIL WP No.14/2010. It is virtually placed at the end of the compilation of PIL WP No.14/2010. There is no running pagination to this affidavit in reply. This affidavit-in-reply dated 17th January, 2011 runs into 5 pages. We have also noticed an affidavit-in-reply dated 31st December, 2010, filed on behalf of respondent No.2 State of Goa, sworn in by one Mr. G. T. Kumar, Deputy Conservator of Forests (North Goa). This affidavit is also placed in PIL WP. No.14/2010. It has been submitted by the learned Advocate General that this affidavit is in response to the pleadings raised by the petitioner in the PIL WP. Even though the affidavit in reply on behalf of the respondent State is not filed in response to the present Misc. Civil Application seeking amendment, the learned Advocate General by oral submissions opposes the civil application filed by the applicant-petitioner. 7 MCA.73 of 2011 9. Learned Counsel appearing for the applicant seeks amendment. The grievance raised in this application is in respect of lack of knowledge, more specifically in relation to grant of permission in favour of respondent No.1 for felling of 125 trees. 10. From the PIL Writ petition No.14/2010, we have noticed that an earlier order passed by this Court in Writ Petition No.321/2010 has been briefly referred to. In para 6 of the petition, date of the order in earlier petition is given as 12.8.2010 and the petitioner seeks enforcement of the said order. In para 2 it is stated that the petitioner is an environment NGO based in Goa. In para 8 it is stated that Writ Petition No.321/10 was filed to challenge the approvals granted by the Ministry of Environment & Forests (hereinafter referred to as “MOEF” for short) for diversion of 44,000 sq. metres of prime forest at Tivim village for construction of commercial facilities connected with development of the cricket stadium, to be constructed by respondent No.1. In para 9, a reference is made to two affidavits on behalf of respondent No.1, first one is dated 8th July, 2010 with regard to issue of environment clearance. It is pointed out that at para 11 of the said 8 MCA.73 of 2011 affidavit it is stated by respondent No.1 that respondent no.1 has engaged services of M/s. Grass Roots Research and Creation India Pvt. Ltd. to obtain necessary environment clearances from the concerned authorities for setting up the stadium by work order dated 19.5.2010. Para 13 of the said affidavit, which is referred to in para 9 of the petition, reminds solemn undertaking given to this Court by respondent No.1 that they shall commence construction of the proposed project in the acquired land in stages and after obtaining all the necessary permissions from the concerned authorities. Further statement is also significant, which reads “It was also stated that presently no construction had commenced in the acquired land”. Para 10 makes a reference to an additional affidavit dated 4th August, 2010 on behalf of respondent No.1 (at page 8) adhering to the undertaking and/or undertaking that they shall commence construction works in the acquired land in stages, after obtaining all necessary permissions from the concerned authorities. In para 12, a statement is made that to the best of the petitioner's knowledge, respondent No.1 has not obtained environment clearance till date. It is stated that the petitioner has made oral inquiries with the authorities from time to time in this regard. In 9 MCA.73 of 2011 para 13 of the writ petition, it is stated that the petitioner recently learnt that in the second week of December, 2010, respondent No.1 has commenced construction of phase I of the stadium. A reference is also made to some press reports in relation to felling of 125 trees from non- forest area of the plot and excavators and trucks have begun to excavate the land for purposes of constructions of the stadium. Copies of press statement, allegedly made by respondent No.1 about construction work and felling of trees have been placed on record, along with the petition. 11. It has come on record that on the date of filing of the PIL Writ Petition, respondent No.1 Goa Cricket Association and the State of Goa respondent No.2 were the only two parties-respondents before this Court. With the leave of this Court, respondent No.3 i.e. State of Goa through Conservator of Forests, Panaji, Goa is added as party respondent. On these background facts which we have referred to in the foregoing paragraphs, we are considering the present misc. civil application. 10 MCA.73 of 2011 12. In para 2 of the application, a statement is made by the applicant-petitioner that after addition of the Conservator of Forests, i.e. respondent no.3 with the leave of the Court, Respondent No.3 thereafter on 3.12.2010 filed an affidavit, which is on record and which we have referred to in the foregoing paragraphs. According to the learned Counsel for the applicant, it was for the first time that the petitioner received the knowledge of grant of permission in favour of respondent No.1 by respondent No.3 for felling of 125 trees. In para 4 of this misc. civil application, it is stated that the petitioner's Advocate has sent a request by email to the advocate for respondent No.3 seeking copies of the documents Annexure 1, annexed to this misc. civil application. In para 7 of this misc. application, a statement is made that some of the documents sought under discovery were released to the petitioner's Advocate on 13.1.2011 and that is how the applicant has filed this application to bring the petition upto date as per the knowledge and documents now made available to petitioner. 13. With the assistance of the Counsel appearing for the parties, we have listed some facts, dates and orders passed by this 11 MCA.73 of 2011 Court, not only in PILWP No.14/2010, but in Writ Petition No.321/2010 also. 14. Senior Advocate Shri Dessai, appearing for respondent No.1 opposed the amendment. According to him, the nature of the petition would stand changed if the amendment is allowed at this stage. He also invited our attention to PIL Writ Petition No.14/2010 and now the nature of amendment sought by the petitioner-applicant. According to him, this application is moved by the applicant with ulterior motive and be rejected. 15. Learned Advocate General Mr. Kantak submits that the application filed by the petitioner-applicant cannot be considered and may be rejected. In substance, he supports the submissions made by learned Senior Advocate Mr. Dessai on behalf of respondent No.1. 16. We have given due consideration to the submissions made by learned Counsel appearing on behalf of the respective parties. We have considered the date and events in both the writ petitions i.e. 12 MCA.73 of 2011 present PIL WP No.14/2010 and Writ petition No.321/2010. In view of earlier hearing, learned Advocate General makes available the file maintained by the State of Goa, department concerned. We have seen the communication dated 26/11/2010. This communication is addressed by the Conservator of Forests to his subordinate i.e. the Dy. Conservator of Forests. We have seen the communication wherein Government approval has been conveyed for cutting of 125 number of trees which fall in survey Nos.431/1, 432/19 and 432/20 on conditions embodied in the said communication dated 26.11.2010. The file made available to us, along with the communication, has been returned to the learned Advocate General. We are not oblivious of the fact that we are considering a civil application for amendment filed by the applicant- petitioner. We have also noticed the status of the present applicant, main challenge raised in the writ petition, actions of the State not only to the parties to the writ petition, but to the populous of State of Goa. In this civil application, we are not recording any opinion so far as merits of the controversy involved amongst the parties. Civil application for amendment we are considering on the backdrop of the facts and events which we have mentioned in the foregoing paragraphs. 13 MCA.73 of 2011 The Government approval for felling of around 125 trees in the specific area covered under various survey numbers which we have noticed herein above was the matter in hermetic seal. So far as present petitioner is concerned, in our opinion, despite filing of earlier writ petition, orders passed by the Court in that writ petition, disposal of that writ petition, the controversy stands survived. Perception/knowledge by a common citizen is basic requirement, if a citizen desires to move a Court of law for whatever relief that he seeks or is entitled to. Absence of knowledge may paralyse such a citizen/person/party to approach the Court of law. Respondents No.2 and 3, in this PIL Writ Petition No.14/2010 were respondents No.3 and 7 in earlier Writ Petition No.321/2010. They have marked a copy of the communication dated 26.11.2010 to respondent No.1 Goa Cricket Association, however, not made known this communication to the present petitioner. This conduct of respondents No.2 and 3 can be said to be hermetic. Top of it, respondents have raised a grievance that if amendment is permitted, it may change the entire nature of the writ petition. 17. In the case on hand, in our opinion, till date of filing of the 14 MCA.73 of 2011 present civil application the petitioner was not aware of grant of Government approval for felling of 125 trees which may be a beginning of even spade work in relation to initiation of the project for which the land has been allotted in favour of respondent No.1. In the facts of the present case, the affidavit filed on behalf of respondent No.3, a public servant, has detailed such information in the affidavit. This acquisition of knowledge of grant of approval for felling of 125 trees is a subsequent event, in our considered opinion, which necessitates grant of permission for amendment sought for by the petitioner. 18. Even though we have heard the learned Counsel for the respective parties at great length, we are not recording all their submissions and our findings, for the reason, that the controversy is seized with by this court in PIL Writ Petition No.14/2010. The amendment which we are inclined to permit may give opportunity to the respondents to meet the amended pleadings, if they desire to do so. We reiterate that we have not decided the controversy amongst the parties. With possible restraints we have referred to some dates, events, facts and orders passed by this Court either in Writ Petition No. 15 MCA.73 of 2011 321/2010 or in the present PIL WP. No.14/2010. 19. In this view of the matter, civil application is allowed. The amendment sought for by the applicant-petitioner is permitted. Necessary amendment to be carried out to the petition on or before Thursday i.e. 3rd February, 2011. Amended copy of the petition to be placed on record. S.B. DESHMUKH, J. F.M. REIS, J. ssm.