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 Jagannath Ambaji, having its Office ) at Hut No.40/3/6, Manurwadi, Wadala, ) Mumbai – 400 037. ).. Petitioner Versus 1. Union of India, ) Through its Ministry of Environment ) & Forest Paryavaran Bhavan, CGO ) Complex, Lodhi Road, ) New Delhi – 110 003. ) 2. State of Maharashtra, ) through Secretary, ) Urban Development Department, ) Mantralaya, Mumbai. ) 3. Maharashtra Maritime Board, ) having its office at Indian ) Mercantile Chambers, 3rd Floor, ) Ramjibhai Kamani Marg, ) Ballard Pier, Mumbai. ) 4. Collector, Raigad, ) At Alibag, District – Raigad, ) 2 5. Maharashtra Pollution Control Board,) through its Chairman, Kalpataru ) Point 3 and 4th 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 Dharma Janu Patil, ) Residing at Kudgaon, ) Tal. Shriwardhan. ) 8. Shri Krushna Baloji Gidi, ) Residing at Rajpuri, Tal. Murud, ) Dist. Raigad. ) 9. Shri Motiram C. Patil, ) Residing at Ekdara, ) Tal. Murud, Dist. Raigad. ) 10. Shri Vijay Krishna Gidi, ) Residing at Rajpuri, ) Tal. Murud, Dist. Raigad. ) 11. Shri Dattatraya Hari Bedekar, ) Residing at Dighi, ) Tal. Shriwardhan, Dist. Raigad. ) 12. Shri Janardhan Changya Govari, ) Residing at Dighi, ) Tal. Shriwardhan, Dist. Raigad. ) 3 13. Shri Anant Changya Mendadkar, ) Residing at Dighi, ) Tal. Shriwardhan, Dist. Raigad. ) 14. Shri Damodar Dharma Patil, ) Residing at Kudgaon, ) Tal. Shriwardhan, Dist. Raigad. ) 15. Shri Laxman K. Patil, ) Residing at Turumbadi, ) Tal. Mhasla, Dist. Raigad. ) 16. Shri Moreshwar Nagya Patil, ) Residing at Mendadi, ) Tal. Mhasla, Dist. Raigad. ) 17. Shri Narayan Hari Patil, ) Residing at Kharsai, ) Tal. Mhasla, Dist. Raigad. ) 18. Shri Kashinath B. Kamble, ) Residing at Pabhare, ) Tal. Mhasla, Dist. Raigad. ) 19. Dnyandeo N. Tandel, ) Residing at Vashi, ) Tal. Tala, Dist. Raigad. ) 20. Shri Hari B. Murtuge, ) Residing at Rahatat, ) Tal. Tala, Dist. Raigad. ).. Respondents -- Shri A.V. Anturkar, Sr. Counsel i/by Shri R.K. Mendadkar for the Petitioners. Shri S.R. Nargolkar, AGP for the State. 4 Ms Yamini Chandran i/by Umesh Shetty & Co. for Respondent No.3. Ms D.U. Deshmukh for Respondent No.5. Shri I.M. Chagla along with Shri Zal Andhyarujina i/by M/s. Little & Co. for Respondent No.6. Shri U.P. Warunjikar for Respondent Nos.11 to 13. Shri R.B. Raghuwanshi, Additional Solicitor General along with Shri Afrol Shah for Union of India. Shri S.H. Aney i/by Makaran Narvekar for Respondent Nos.7, 10, 14 to 20. -- CORAM : SWATANTER KUMAR , C.J. & S.C. DHARMADHIKARI, J JUDGMENT RESERVED ON : 11TH JUNE, 2009 JUDGMENT PRONOUNCED ON : 9TH JULY, 2009 JUDGMENT : (PER SWATANTER KUMAR, 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. 5 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 Coastal Regulations Zone Notification, 1991, 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 Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution ) Act, 1981 from the Maharashtra Pollution Control Board before commissioning of the project. 3. The Petitioner is a registered body which claims to promote 6 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 7 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. 8 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. Maharashtra Marine Fishing Regulation Act, 1981 has been enforced in these areas primarily to protect the interest of persons living there and Section 4 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 - Shriwardhan, 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 9 Maharashtra Maritime Board 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 Environment Act. Vide their letter dated 21st 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 10 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 11 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 Article 48A and Article 51A(g) and 21 of the Constitution of India. 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 12 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 National Environment Appellate Authority Act, 1997 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 Environment (Protection) Act, 1986 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 13 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 Samity Shriwardhan 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 14 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. Union of India, 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 15 member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 of the Constitution of India. 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 Constitution, 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 D.M. Dharmadhikari [(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 16 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 (State of Bihar v Kameshwar Singh, AIR 1952 SC 252). 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. (Emperor v Jeshingbhai Ishwarlal Dhobi, AIR 1950 Bom 363). 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. (Murlidhar Agarwal v State of U.P, (1974) 2 SCC 472). (Reference : “The Phantom of ‘Public Interest’, article by Prof. (Dr) D.C. Jain, [1986] 3 SCC (J) 30]). 17 12. All these principles have been stated and restated by the Courts including the Supreme Court. In the case of Padma v Hiralal Motilal Desarda and Others, (2002) 7 SCC 564, 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. 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 18 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 ? 19 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.” 20 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 Union of India 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. Lalu Prasad Yadav 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 Union of India (2006) 5 SCC 28 (Hon. Y.K. Sabharwal C.J. And Arijit Pasayat and S.H. Kapadia, 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 21 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 Ram Jethmalani in regard to