1 IN THE HIGH COURT OF BOMBAY AT GOA MISC. CIVIL APPLICATION NO. 499 OF 2010 IN WRIT PETITION NO. 322 OF 2010 The Goa Foundation ... Applicant V e r s u s Shri Vithal Shiva Gaonkar & Anr. ... Respondents Mrs. Norma Alvares, Advocate for the Applicant. Mr. M. Sonak with Mr. J. Supekar, Advocates for the Respondents/original Petitioners. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. D. Lawande, Advocate for original Respondent No.2. Mr. S. S. Kantak, Advocate General with Mr. M. Salkar, Addl. Government Advocate for original Respondent No.1. AND MISC. APPLICATION NOS. 294 & 505 OF 2010 IN WRIT PETITION NO. 330 OF 2009 Sesa Goa Limited, through its Mines Manager, Mr. Umesh S. Kadam, having office at Sesa Ghor, Patto, Panaji Goa. ... Applicant V e r s u s Mr. Akash Naik & 9 Others ... Respondents 2 Mr. A. N. S. Nadkarni, Senior Advocate with Mr. D. Lawande, Advocate for the Applicant/original Respondent No.9. Mrs. Norma Alvares, Advocate for the original Petitioners. Mr. S. S. Kantak, Advocate General with Mr. M. Salkar, Addl. Government Advocate for Respondent Nos. 1, 2, 4, 5 and 8. Mr. J. Godinho, Advocate for Respondent No.6. CORAM : A. S. OKA & F. M. REIS, JJ. DATED : 3 rd AUGUST, 2010. P.C.: The Writ Petition No. 330 of 2009 is filed in public interest. The substantive prayer is for quashing the environment clearance, consents and any other approvals granted to 9th Respondent therein ( Sesa Goa Limited ) for operation of the mining lease No. 76/52 and for declaring the lease as null and void. Various other directions are sought in the Petition including a direction against the Sesa Goa Limited for restoration of flora and fauna of the area and the original physical environment including the ground water aquifers, water bodies, water courses ( nallahs ) and springs. A direction is sought against the Sesa Goa to restore the paddy fields of the village to their original condition. 2. On 6th January, 2010 Rule was issued in Writ Petition No. 330 of 3 2009. Further directions issued by this Court read thus : “2. On 17.9.2009, the Counsel appearing for respondent No.9 Company made a statement before this Court that on the adjourned date, calendar for removal of dump from Phase I would be placed on record of this Court. The matter was, thereafter, listed for hearing on 8.10.2009, 9.11.2009, 30.11.2009 and 4.1.2010. Admittedly, the process of removal of dump has not yet commenced. 3. Mr. Nadkarni, learned Senior Counsel appearing for respondent No.9, on instructions, makes a statement that after consultation with an expert body, dump from Phase I would be removed. 4. In the light of facts and circumstances of the case, upon perusal of the earlier orders passed by this Court and after considering the submissions of the Counsel appearing for the parties, we are of the view that the dump accumulated in Phase I has to be removed by respondent No.9 Company. Respondent No.9 had, in fact, agreed for removal of the dump and accordingly, a statement was recorded on 17.9.09. We, therefore, order that the exercise of removal of dump from Phase I shall be completed by end of April, 2010. 5. We further reiterate that on 30.11.2009, a statement was made by the learned Senior Advocate appearing on behalf of respondent No.9 to the effect that in case the revised plans were approved, they would not start mining work, without informing the Court in Phase I and Phase II. We clarify that the statement made by the learned Senior Counsel for respondent No.9, would not come in the way of respondent No.9 in removal of dump from Phase I.” 4 3. The Writ Petition No. 322 of 2010 has been filed by one Vithal Shiva Gaonkar and another. Initially the State of Goa and Sesa Goa Limited were the only parties to the said Petition. The prayer (A) of the said Petition reads thus : “(A) This Hon'ble Court be pleased to issue an appropriate writ, order or direction, commanding the Respondent Nos.1 and 2 to forthwith refrain from relocating or otherwise interfering to dump in question, until they obtain permissions from the Statutory Authorities and/or Report from independent Technical Agency in the matter of scientific relocation and consistent with the terms and conditions that may be prescribed in the permissions and/or the report.” There is a further prayer seeking an appropriate writ against the Sesa Goa Limited to carry out pre-monsoon environmental protective measures prior to the onset of the monsoon. A prayer for interim relief is for restraining the Sesa Goa Limited from making any further attempts of relocating the dump in question. This Petition came up before this Court on 29th April, 2010. In the first paragraph of the order passed on that date, this Court has noted the aforesaid order dated 6th January, 2010 passed in Writ Petition No. 330 of 2009 and it specifically records that the Sesa Goa Limited was directed under the said order to complete the removal of the dump from Phase I by the end of April, 2010. Clauses 2 to 8 of the said order read thus : 5 “2. Mr. Sonak, the learned Counsel appearing on behalf of the petitioners, states that the removal of the dump involves a highly technical and complex process and that ought not to be left to the second respondent without the same being supervised by an expert agency. There was no objection to the same from the second respondent. The learned Advocate General in fact supported the petitioners in this regard. The learned Advocate General suggested that NEERI ( National Environmental Engineering Research Institute ) be appointed as the expert agency. There was no objection to the appointment of NEERI by any of the parties. 3. NEERI is accordingly appointed to oversee the work. The second respondent shall pay the costs of the expert agency. 4. Mr. Sonak states that at present, the dump has stablised and it is, therefore, not advisable to remove the same till the monsoons are over. We leave this aspect also to the expert agency/NEERI. NEERI is requested to issue directions in this regard as well. 5. The parties shall act as per the directions of NEERI. These directions may be issued by NEERI even before the submission of a report. The report itself shall be filed on or before 30.06.2010. We reiterate that even before filing of the report, NEERI shall be entitled to issue directions about protecting/preserving the dump and ensuring that there is no hardship or adverse consequences on account thereof. 6. As stated above, although the petitioners state that the dump has stablised, at this stage, on this aspect, we cannot express any opinion. As the directions of NEERI may take some time immediate action in respect of the dump, shall be in consultation with the Water Resources 6 Department of the State of Goa. 7. There shall also be an order in terms of prayer clause (B) and (C). 8. S. O. to 5th July, 2010. To be heard along with the Writ Petition No. 330/2009.” 4. Misc. Civil Application No. 499 of 2010 has been filed by the Petitioners in Writ Petition No. 330 of 2009. The Applicant in the said application the Goa Foundation has been subsequently ordered to be impleaded as a party to Writ Petition No. 322 of 2010. A prayer in this application is for vacating the interim relief granted by this Court in terms of prayer clause (C). The second prayer is for deleting the references in order of this Court dated 29th April, 2010 to the permission granted to National Environmental Engineering Research Institute ( in short 'NEERI') to issue directions to protect/preserve the dump made in paragraphs 4, 5 and 6 of the said order. 5. Misc. Civil Application No. 294 of 2010 is made in the Writ Petition No. 330 of 2009 by the Sesa Goa Limited for grant of extension up to 31st March, 2011 to comply with the order passed on 6th January, 2010. Misc. Civil Application No. 505 of 2010 is again made by the Sesa Goa Limited in Writ Petition No. 330 of 2009. The prayer (A) of the said application reads thus : 7 “(A) That this Hon'ble Court be pleased to modify the orders dated 17th September, 2009, and 6th January, 2010, to the effect that the orders passed/statements made as regards removal of the dump, be carried out under and in accordance with the Report of NEERI and if necessay, direct NEERI to oversee the work therein”. 6. The learned Counsel appearing for the Goa Foundation ( the second Petitioner in Writ Petition No. 330 of 2009 and added Respondent No.4 in Writ Petition No. 322 of 2010 ) has invited our attention to the aforesaid orders dated 6th January, 2010 and 29th April, 2010. She also pointed out earlier orders passed by this Court on 10th June, 2009, 18th June, 2009 and 24th June, 2009 in Writ Petition No. 330 of 2009. The learned Counsel submitted that in Writ Petition No. 330 of 2009, this Court has accepted the case made out by the Petitioners therein that removal of the dump made by the Sesa Goa is necessary and that is the reason why this Court directed the Sesa Goa to remove the dump from Phase I by the end of April, 2010. Her grievance is that in Writ Petition No. 322 of 2010, the Goa Foundation has not been heard and the effect of the order dated 29th April, 2010 is that the order passed on 6th January, 2010 in Writ Petition No. 330 of 2009 stands completely nullified. She invited our attention to the report of the National Environmental Engineering Research Institute ( for short NEERI) submitted in terms of order dated 29th April, 2010. She submitted that some of the paragraphs of the report give impression that the 8 NEERI has considered the matter in the context of preserving the dump and not in the context of proper measures to be taken for removal of the dump. She submitted that order dated 6th January, 2010 cannot be allowed to be defeated and, therefore, the interim relief granted in terms of prayer clause (C) in Writ Petition No. 322 of 2010 deserves to be vacated. 7. We have heard the learned Counsel appearing for the Petitioners in Writ Petition No. 322 of 2010. We have also heard the learned Senior Counsel appearing for the Sesa Goa Limited and the learned Advocate General appearing for the State. The prayer made in Writ Petition No. 322 of 2010 is essentially to ensure that the said Sesa Goa Limited removes the dump only after obtaining the requisite permissions of authorities and/or after obtaining report from the independent technical agency in the matter of scientific relocation of the dump. In substance, the Petitioners in the said Writ Petition also want the dump to be removed. However, apprehension is expressed as regards the consequences of carrying out the work of removal of dump during the monsoon and, therefore, there is a specific prayer directing the Sesa Goa Limited to carry out pre-monsoon environmental protective measures prior to the onset of the monsoon. After having perused the orders dated 6th January, 2010 and 29th April, 2010, we find that there is no material inconsistency. Both the orders proceed on the footing that the dump has to be removed. A report of 9 NEERI appears to have been invited on the basis of a submission of the Petitioners in Writ Petition No. 322 of 2010 that removal of the dump involves a highly technical and complex process and, therefore, the removal of the dump by the Sesa Goa Limited has to be under the supervision of an expert agency. The object of inviting report from NEERI appears to be to ensure that the task of the removal of the dump is carried out in proper and scientific manner. The report of NEERI read as a whole appears to suggest that some further study is required to be carried out before action of removal or re-location of the dump is actually started. A reference in the report of NEERI to take immediate measures for stabilization of the dump is obviously in view of the fact that during the current monsoon, the dump was required to be preserved properly considering possible threat posed by sliding/collapsing of the dump during the monsoon. 8. In fact in application No. 505 of 2010 made by the Sesa Goa Limited, one of the prayers is that NEERI be directed to oversee the work of removal of dump. 9. While passing the order dated 6th January, 2010, the anxiety of the Court was to ensure that the work of the removal of the dump has to be completed before onset of monsoon. However, the work has not commenced. In the monsoon, the work of removal and re-location cannot start. 10 10. We are of the view that it is necessary to ensure that the work of removal of dump has to be carried out and completed before onset of the next monsoon of the year 2011. The NEERI has sought time of 12 months for completing further study. If time of 12 months is granted, the dump will not be removed before the onset of the next monsoon. Therefore, the NEERI will have to expedite the further study and ensure that further study is completed by the end of the year 2010. It will have to be ensured that the dump is removed on or before 31st March, 2011. In fact the Sesa Goa Limited has agreed that NEERI should be directed to oversee the work of removal of the dump. 11. In view of the aforesaid discussion, we dispose of the applications by issuing the following directions. (A) We direct the National Environmental Engineering Research Institute to expeditiously complete the further study as regards the measures to be taken for removal of the dump. The study shall be completed on or before 31st December, 2010. (B) We direct the Sesa Goa Limited to complete the removal of the dump on or before 31st March, 2011. (C) We direct that the work of removal of dump shall be carried out as per the advise and suggestion of the National Environmental Engineering 11 Research Institute. We direct the said institute to oversee the operation of removal dump. (D) We direct the Sesa Goa Limited to pay necessary fees, costs and charges of the said institute as per the bill which may be raised by the said institute. (E) In view of the aforesaid directions, we vacate the interim relief granted in Writ Petition No. 322 of 2010 in terms of prayer clause (C). It is, however, made clear that the work of removal of the dump shall be carried out by the said Sesa Goa Limited in consultation with NEERI. (F) Parties are at liberty to apply in the event there is any difficulty in implementation of the directions issued as above. (G) It is made further clear that the work of removal of dump shall be started by the Sesa Goa Limited only after further study by the NEERI is completed. We have already directed the NEERI to complete the study by the end of December, 2010. A. S. OKA, J F. M. REIS, J at*