IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 14460 of 2004 with SPECIAL CIVIL APPLICATION No 14813 of 2004 with SPECIAL CIVIL APPLICATION No 14819 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE K.A.PUJ ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- BK SHARMA Versus UNION OF INDIA -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 14460 of 2004 MR SURENDRA K KAPUR, SR. ADVOCATE with MR RAVI KAPUR, BARRISTER-AT-LAW with MR NIRAV C THAKKAR for Petitioners No. 1-2 MR JITENDRA MALKAN, STANDING COUNSEL and MS SEJAL K MANDAVIA for Respondent No.1 - Union of India MR SN SHELAT, ADVOCATE GENERAL with MR ASHISH DESAI, AGP for Respondents No. 2-3 MR SN SHELAT, ADVOCATE GENERAL with MR KH BAXI for Respondent No. 4 MR SB VAKIL, SR. ADVOCATE with MR RAVINDRA SHAH and MR ARUNKUMAR VARMA for Respondent No. 5 2. Special Civil Application No. 14813 of 2004 MR AK CLERK for Petitioner MR JITENDRA MALKAN, STANDING COUNSEL for Respondent No.1 - Union of India MR SN SHELAT, ADVOCATE GENERAL with MR ASHISH DESAI, AGP for Respondents No.2 & 3 MR SN SHELAT, ADVOCATE GENERAL with MR KH BAXI for Respondent No.4 - GPCB MR PM THAKKAR with MR RAVINDRA SHAH and MRS KANAN R SHAH and MR ARUNKUMAR VARMA for Respondent No.5 3. Special Civil Application No. 14819 of 2004 MR AMIT PANCHAL for Petitioner MR SN SHELAT, ADVOCATE GENERAL with MR AHSISH DESAI, AGP for Respondents No.1 & 2 MR SN SHELAT, ADVOCATE GENERAL with MR KH BAXI for Respondent No.5 MR JITENDRA MALKAN, STANDING COUNSEL for Respondents No. 3,4 & 6 MR PM THAKKAR with MR RAVINDRA SHAH and MR ARUNKUMAR VARMA for Respondent No.7 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE K.A.PUJ Date of decision: 9/12/2004 C.A.V. JUDGEMENT (Per : HON'BLE MR.JUSTICE K.A.PUJ) Since common issues are involved in all these three Special Civil Applications and since the prayers made therein are almost same and similar, all the three Special Civil Applications are being disposed of by this common judgment and order. 2. At the joint request of the parties, all the three matters are finally heard at length at the admission stage and they are being finally disposed of. 3. All the three petitions are filed by way of Public Interest Litigations under Article 226 of the Constitution of India. The first petition, being Special Civil Application No.14460 of 2004, is argued at length by all the learned counsels appearing for the respective parties. The learned counsel appearing for the petitioners in Special Civil Applications No.14813 and 14819 of 2004 are also permitted to make their submissions as interveners. The facts and submissions are mainly taken from that first petition. 4. The petitioner no.2 is claiming to be a NGO involved, inter alia, in the protection of environmental laws and other public related activities. Before filing the present petition, the petitioners had filed Special Civil Application No.8937 of 2004 before this court seeking direction against the authorities to take appropriate preventive steps and measures against the respondent no.5 i.e. M/s. Saw Pipes Limited for proceeding further with the construction activities of the respondent no.5's project comprising Blast Furnace and Ductile Iron/Cast Iron Pipe, Fitting, Casting Manufacturing plant and foundry near Mundra, Kutch without prior environmental clearance under the Environment (Protection) Act & Rules, 1986, and the Environment Impact Notification dated 27th January, 1994. Even the petitioners in Special Civil Application No.14813 of 2004 and 14819 of 2004 have also filed petitions being Special Civil Application No.10015 of 2004 and Special Civil Application No.8118 of 2004. All the three petitions were disposed of by this court on 9th September, 2004 permitting the petitioners to withdraw the same so as to make representation to the Central Government. Subsequent to the withdrawal of the said petitions, representations were made by the present petitioners of all the three petitions on or about 16th September, 2004 and the said representations were decided by the respondent no.1 on 21st October, 2004 stating that the objections raised by the present petitioners to the grant of environmental clearance to the respondent no.5 i.e. M/s. Saw Pipes Ltd. for establishment of mini Blast Furnace at village Samagogha in District Kutch of Gujarat have not been found justified, in the light of the provisions of Environment Impact Assessment Notification, 1994 and its subsequent amendments, and further stating that those environmental concerns which, after due consideration, have been found valid have been accounted for by stipulating specific conditions/safeguards in the environmental clearance letter. The environmental clearance letter was also dated 21st October, 2004 wherein it was observed that the proposal of the respondent no.5 was for environmental clearance for Mini Blast Furnace of capacity 2,50,000 TPA for the manufacture of Ductile Iron Spun Pipes/Cast Iron Spun Pipes, LASW steel pipes, Spiral steel pipes, ERW steel pipes and Hot frame steel pipes including Ductile Iron Pipe Fittings and Ductile Iron Casting and further observing that the Ministry of Environment and Forests accorded environmental clearance to the said project under the provisions of EIA Notification dated 27th January, 1994 as amended subsequently, subject to strict compliance of specific and general conditions laid down therein. 5. It is this action of the respondent no.1 which is challenged in the present petitions. 6. The petitioners have, inter alia, prayed, in these petitions, for a declaration to the effect that the ex post facto approval dated 21st October, 2004 is null and void and that the respondent no.5's project comprising of Blast Furnace and the pipe manufacturing facilities is an integrated project and that the DI/CI spun pipe manufacturing facilities forming part of the respondent no.5's project is a foundry. The petitioners have also prayed for a writ in the nature of mandamus to the respondent no.5 to demolish/destroy the existing buildings/factory/plant at the project site and to restore the land to its original condition and also to demolish the blast furnace. The petitioners have also prayed for the appointment of an investigation team to examine the records and books of account of the respondent no.5 to ascertain the true cost of the project and also to appoint NEERI or any other appropriate agency to examine whether the project as designed is adequate for a seismic zone and to examine the two EIA reports as to whether all measures have been taken up for setting up the project and to file a report with this court within such time as may be directed. The petitioners have also ventilated their grievance against the respondent no.1 in not granting personal hearing while deciding their representation. 7. Before Mr. Surendra Kumar Kapur, the learned Senior advocate appearing for the petitioners, makes his submission, Mr. S.B. Vakil, the learned Senior advocate appearing for the respondent no.5 has raised preliminary objections against the maintainability of the petitions. 7.1 The first preliminary objection raised by Mr. Vakil was that the petitioners or either of them are/is not competent to sue or file a writ petition. He has submitted that the second petitioner, a Society registered under the Societies' Registration Act, 1866, is not a person in the eye of law and is not competent to sue in its own name, as held by the Hon'ble Supreme Court in the case of TIBIA COLLEGE [AIR 1962 SC 458]. He has further submitted that the first petitioner has filed the writ petition in the capacity of Project Director of the second petitioner claiming authority to file the writ petition on behalf of the petitioner no.2 on the basis of the Resolution of the Governing Body of the petitioner no.2 passed at the meeting held on 15th July, 2004. This Resolution was not produced by the petitioners in any of the earlier proceedings and it was produced for the first time on 30th October, 2004 in the form of certificate of the Chairman of the petitioner no.2, whose affidavit has not been filed. Mr. Vakil has submitted that the alleged resolution is clearly an afterthought and concocted to provide competency of the writ petition. 7.2 Mr. Vakil has raised the second preliminary objection to the effect that the petition is not bonafide and genuine Public Interest Litigation but has been filed at the instance and behest of Electro Steel Casting Limited (ESCL). The petition is nothing but the result of business rivalry and has been sponsored by the said company. In support of this contention, Mr. Vakil has submitted that the said ESCL is the largest manufacturer of Cast Iron/Ductile Iron pipe in the country and has been able to create and maintain its monopoly in the said field by adopting all kinds of measures. He has further submitted that one Shri Shanti Swaroop, who has been joined as Consultant to the petitioner no.2 - NGO, was working as Advisor on retainership basis since the year 1997 with the said company and he operated from the office of the said company at New Delhi. Mr. Vakil has further submitted that the petitioner no.1 who has signed the present petition in his capacity as Project Director of the petitioner no.2 NGO has been shown as a resident of the same address as that of Shri Shanti Swaroop in the present petition. He has further submitted that the petitioner no.1 was Advisor/Consultant of the said company between the period November-December, 2003 to March-April, 2004 and was looking after marketing activities of the said company in the States of Madhya Pradesh and Chhattisgarh. Mr. Vakil has further submitted that to the knowledge and information of the Respondent No.5, the company which is allegedly sponsoring the present petition got moved one Public Interest Litigation against M/s. Lanco Kalahasthi Castings Limited of Chennai dealing in manufacturing of Ductile Iron/Cast Iron spun pipes and the said company has ultimately taken over this latter company. 7.3 Mr. Vakil has further raised an objection that against the impugned order, an alternative efficacious remedy is available and the petitioners could have filed an appeal before the National Environment Appellate Authority under Section 11 of the National Environment Appellate Authority Act, 1997. This Section permits any person, aggrieved by an order granting environmental clearance in the area in which industries, operations or processes/class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards, to prefer an appeal to the authority within 30 days from the date of such order. 7.4 Mr. Vakil has lastly raised the objection that there are several disputed questions of fact involved in the present petitions which cannot be entertained by this court, while exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India. On the basis of the aforesaid preliminary objections, Mr. Vakil has submitted that the petitions deserve to be dismissed at the threshold on the ground of non-maintainability. 8. While dealing with the preliminary objections, Mr. Kapur has submitted that the respondent no.5 has raised the question of validity and genuineness of the resolution merely with a view to delay the hearing of the present petition and to show that purported disputed questions of fact are involved in the petition. He has further submitted that the entire minute book of the petitioner no.2 Society was produced before this court to show that appropriate resolutions had been validly passed and the petitioner no.1 was appointed by the Governing Body to file the present petition. He has further submitted that even as per the submission of respondent no.5, the Society can, under Section 6 of the Societies' Registration Act, sue only in the name of a person appointed by the Governing Body of the Society. He has, therefore, submitted that it is very apparent from the resolutions itself as well as the minute book that the petitioner no.1 was appointed by the Governing Body of the petitioner no.2 for filing the present petition. Mr. Kapur has further submitted that there is no iota of evidence to show that the present petition was filed at the instance or behest of ESCL, as alleged by the respondent no.5. He has denied any relationship of office bearers or the Board of Trustees of the petitioner no.1 with the personnel of ESCL and even if there is such relationship, it has no bearing so far as the present petition is concerned. With regard to alternative remedy, Mr. Kapur has submitted that the authority is not yet properly constituted as the post of Chairman is still vacant. The appellate authority has no power to grant interim relief and even otherwise, the alternative remedy is not a matter of compulsion. He has further submitted that despite there being an alternative remedy, the Court has ample power to entertain the petition where there is violation of fundamental right or there is violation of principles of natural justice or there is total lack of jurisdiction in the authority who passes such order which is under challenge. He has, therefore, submitted that there is no substance in any of the preliminary objections raised by the respondent no.5 and the petition may be entertained and decided on merits. 9. As far as the merits of the matter is concerned, Mr. Kapur has submitted that under EIA Notification dated 27th January, 1994, the entire procedure is laid down to be followed by any person who desires to undertake any new project in any part of India or the extension or modernisation of existing industry or project listed in Schedule-I, which includes an Environment Impact Assessment Report and Environment Management Plan and details of public hearing as contemplated in Schedule-IV of the Notification. Mr. Kapur has further submitted that the respondent no.5 was proposing a project consisting of a blast furnace, falling in Entry No. 13A of Schedule-I and Ductile Iron and Cast Iron Pipe Manufacturing Plant as well as manufacture of Ductile Iron and Cast Iron Fittings and Castings, which would fall within the Entry No.28 of Schedule-I being Foundries (Individual). Mr. Kapur has further submitted that the project was conceptualised as a single project even as per IEM filed by the respondent no.5 with the Ministry. It specifically mentions reference to manufacture of pig iron by use of blast furnace which would be required for Ductile Iron and Cast Iron Pipes/Fittings/Castings to be manufactured in the foundry. Despite the acknowledgment of IEM on 14th December, 2003, the respondent no.5 instead of applying to respondent no.2 for prior environmental clearance, made an application to GPCB (Gujarat Pollution Control Board) and sought NOC, inter alia, for the production of Ductile Spun Pipe, Cast Iron Spun Pipe, Ductile Iron Pipe Fitting, Ductile Iron Castings and this project was evidently comprising of a foundry and based on the NOC granted by the GPCB on 5th January, 2004, the respondent no.5 proceeded with the construction of the foundry. Mr. Kapur has further submitted that the NOC from GPCB does not amount to prior environmental clearance under the Act and no construction could have been commenced without obtaining such prior approval. He has further submitted that immediately after obtaining NOC for part of the project and commencing the construction of that part of the project, the respondeat no.5 applied for obtaining NOC for blast furnace for manufacturing of pig iron. Though the respondent no.5 is intending to use an induction furnace for melting pig iron and steel as well as for holding superheating liquid metal, the respondent no.5 has not applied for the environmental clearance for using such induction furnace, being a foundry. He has submitted that as far as Entry No.32 of Schedule-I of Environment (Protection) Rules, 1986 is concerned, the standards for emission or discharge of environmental pollutants in respect of foundries were specified. He has further submitted that all establishments using any of the three furnaces namely, Cupola, arc or induction, for melting pig iron and steel as well as holding and superheating the metals are foundries per se. Mr. Kapur has further submitted that the Ductile Iron and Cast Iron pipe produced by centrifugal casting processes and other casting processes such as sand, mould etc. are typical foundry products and are finished as per the end use requirement. He has further submitted that the respondent no.5 uses induction furnace for melting pig iron and steel scrap which, in turn, is used in centrifugal casting process. The centrifugal casting process is one of the methods of casting and is a foundry process. Mr. Kapur has, therefore, submitted that the respondent no.5's project is a composite unit consisting of a blast furnace for the manufacture of pig iron in the foundry and the GPCB has no jurisdiction to give NOC to establish the Pipe Manufacturing Plant without prior environmental clearance. He has, therefore, submitted that no construction could have been commenced without prior environmental clearance and any construction, which was made, is required to be demolished. 10. Mr. Kapur has further submitted that the action of the respondent no.1 authorities to distinguish Ductile Iron and Cast Iron pipes manufactured by centrifugal casting and ductile iron castings and pipe fittings and to take the view that the first is not foundry while the second is foundry is ex-facie bad and contrary to the provisions of all Acts and Rules and contrary to all standard works on foundries and castings. He has further submitted that the respondent no.1 should not have granted clearance to respondent no.5 only in respect of blast furnace in view of the respondent no.5's indication by fax message dated 8th October, 2004 that it does not want to manufacture ductile iron fittings and castings. He has further submitted that by granting this clearance to blast furnace, the respondent no.1 authorities have accommodated the respondent no.5 and to ensure that it can commence manufacturing activity forthwith after following due process. 11. Mr. Kapur has further relied on the dictionary meanings of words 'casting', 'Foundry' and 'individual'. The Oxford English dictionary defines the word 'casting' as an object made by casting especially of molten metal. The word 'Foundry' is defined as a workshop for or a business of casting metal and the word 'individual' is defined as 'single' particular, special, not general or 'having a distinct character'. On the basis of these definitions, he has submitted that pipe is an object made by casting metal and foundry is nothing but the business or workshop of casting metal. Entry No.28 of EIA Notification dated 27th January, 1994 contemplates that Foundries (Individual) means each and every foundry requires environmental clearance. 12. Mr. Kapur has further submitted that the view taken by the Ministry on the basis of the expert opinion of NML (National Metallurgical Laboratory) stating that a unit with induction furnace with centrifugally cast pipes cannot be taken as a foundry unit, is not the correct one. In support of his submissions, Mr. Kapur has relied on the opinion of Mr. S.P. Oudhia as well as on the relevant extract from Metallusters Reference and Guide compiled and edited by Ezra L. Kotzim. He has also relied on the opinion of Professor A.K. Chakrabarti stating that the projection of centrifugally cast iron ductile iron pipes, cast and ductile iron fittings and castings are all described as a foundry activity and the plants are called foundry works. He has, therefore, submitted that the respondent no.1 should have given due weightage to the expert's opinion produced before him by the petitioners alongwith their representation. Mr. Kapur has submitted that despite enough material being available with the respondent no.1, he has not correctly decided the jurisdictional fact. In this connection, he relied on the decision of the Hon'ble Supreme Court in the case of RAZA TEXTILES Ltd. vs. INCOME TAX OFFICER reported in (1973) 1 SCC 633, wherein the Hon'ble Supreme Court has held that "no authority, much less a quasi-judicial authority, can confer jurisdiction on itself by deciding a jurisdictional fact wrongly. The question whether the jurisdictional fact has been rightly decided or not is a question that is open for examination by the High Court in an application for a writ of certiorari." Mr. Kapur has further relied on the decision of the Hon'ble Supreme Court in the case of SHRISHT DHAWAN (SMT) vs. M/s SHAW BROTHERS reported in (1992) 1 SCC 534, wherein at page 551, the Hon'ble Supreme Court has held that "a jurisdictional fact is one on existence or non-existence of which depends assumption or refusal to assume jurisdiction by a court, tribunal or an authority. In Black's Legal Dictionary, it is explained as a fact which must exist before a court can properly assume jurisdiction of a particular case. Mistake of fact in relation to jurisdiction is an error of jurisdictional fact. No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends, the court or tribunal exercises the jurisdiction then the order is vitiated." Mr. Kapur has further relied on the decision of the Hon'ble Supreme Court in the case of TATA CELLULAR vs. UNION OF INDIA reported in (1994) 6 SCC 651, wherein at page 680 in para 81, the Hon'ble Supreme Court has observed that "it is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld." 13. Mr. Kapur has further submitted that since the construction work was carried out by the respondent no.5 without obtaining the environmental clearance, the respondent no.5 has violated the provisions of law and, therefore, the construction is required to be demolished. In this connection, he has relied on the decision of the Hon'ble Supreme Court in the case of INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION vs. UNION OF INDIA AND OTHERS reported in (1996) 5 SCC 281, wherein at page 293 in para 26, it is observed that "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 anti-pollution laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and Notification issued thereunder contained 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 anti-pollution laws not only degrades 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." 14. Mr. Kapur has further submitted that despite the specific request having been made by the petitioners in their representation to grant personal hearing, the respondent no.1 has rejected the representation of the petitioners without according an opportunity of being heard. He has further submitted that while rejecting the petitioners' representation, the respondent no.1 has not given any reasons whatsoever. He has, therefore, submitted that the impugned communication dated 21st October, 2004