In the High Court of Bombay at Goa
A.P. LAVANDE & U.V. BAKRE, JJ.
Gangadhar Narsingdas Agrawal & Others
Versus
Ministry of Environment and Forests Through its Secretary (I.A. Division) & Others
Writ Petitions Nos. 624 of 2012, 625 of 2012, 685 of 2012 & 730 of 2012
Decided On : 12-06-2013
Since complainant has no objection for quashing of proceedings as dispute between accused and complainant was settled hence proceedings liable to be quashed.
Constitution of India - Article 14 - Violation of principles of natural justice. - Order suspending mining activities, passed in breach of principles of Natural justices, cannot be sustained. - Although the impugned orders are quashed, the petitioners shall not carry on any mining activity in the mines in question, till the orders are passed by respondent No. 1 and further subject to the orders that may be passed by the Apex Court in the pending writ petition.
Constitution of India - Article 226 - Bar to writ petition. - Writ petition challenging order of suspension of mining activities carried out in breach of principles of natural justice, not barred by availability of alternate remedy. - In the show cause notice issued to the petitioners, there is no reference to the Order dated 4.12.2006 passed in Writ Petition No. 460/2004, by the Apex Court on which reliance has been placed by respondent No. 1 in the impugned orders. No doubt, in the replies, the petitioners had made reference to the said Order and submitted that the same was not applicable to the case of the petitioners, but, this fact, by itself, would not be sufficient to hold that respondent No. 1 is entitled to rely upon the said order for suspending the mining activities of the petitioners, without putting the petitioners to notice that mining activities carried on by the petitioners are in violation of the said order of the Supreme Court. Thus, the necessary sequitur is that the impugned orders have been passed in clear breach of the principles of natural justice and, therefore, the petitions deserve to be admitted notwithstanding the judgment of the Apex Court in the case of Bhopal Gas Peedith Mahila Udyog Sangathan and others v. Union of India, 2012 (8) SCC 326, the Apex Court has held that existence of alternative statutory remedies would not operate as a bar in at least three contingencies, namely, where the writ petition has been filed for enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
A.P. Lavande, J. Heard Mr. D. Khambatta, Mr. D. Mehta, Mr. N. Sardessai, learned Counsel for the petitioners and Mr. C. A. Ferreira, learned Asst. Solicitor General and Mr. A. N. S. Nadkarni, learned Advocate General for the respondents.
2. All the four writ petitions are being disposed of by common judgment since the issues involved in all these petitions are almost identical.
3. For the sake of convenience, we shall deal with the facts in Writ Petition No.685/2012 since the arguments which have been advanced in this petition by learned Senior Advocate Mr. D. Khambatta, have been adopted by learned Counsel appearing for the petitioners in other writ petitions.
4. The petitioners, in Writ Petition No. 685/2012, are engaged in mining activities. It is the case of the petitioners that the mine is situated at a distance of about 1.22 kms. from Bhagwan Mahaveer Wildlife Sanctuary. On 15th December, 1995, respondent No.1 granted permission for diversion of forest land for mining lease under Section 2 of the Forest Conservation Act, 1980, which was extended from time to time. On 3rd September, 2007, respondent No.1 granted environmental clearance for the mining, subject to certain conditions. On 17th October, 2007, the petitioner applied for clearance under the Wildlife (Protection) Act, 1972 with respondent No.1, which according to the petitioner, was the competent authority under the Wildlife Act. The petitioner submitted the compliance report on 19th January, 2008 with respondent No.1 stating that clearance under the Wildlife Act has been sought from respondent No.3 on 17th October, 2007. In February, 2008, the petitioner obtained consent under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, which have been renewed from time to time.
5. On 19th February, 2008, respondent No.1 inspected the petitioner's mine for monitoring under the environment clearance. Thereafter on 15th July, 2008, respondent No.3 granted permission under the Wildlife Act and on 21st August, 2009, the petitioner filed compliance report with respondent No.1 stating, inter alia, that clearance under the Wildlife Act has been obtained from respondent No.3, on 5th July, 2008. In so far as drawal of ground water is concerned, prior permission would be obtained from the competent authority, if required, to draw the ground water. Similar compliance reports were also filed with respondent No.1 on 18.11.2010, and 15.6.2011.
6. On 26th September, 2011, respondent No.1 again inspected the petitioner's mine and on 15th December, 2011, inspection report dated 26.9.2011 was sent to the petitioner, inter alia, stating that in view of the Supreme Court Order dated 4th December, 2006, the environment clearance be kept in abeyance since final approval of the Wildlife Board and prior permission for drawal of ground water had not been obtained. The petitioner sent its response to respondent No.1, disputing the contentions raised in the report.
7. Thereafter, on 23rd April, 2012, respondent No.1 issued show cause notice to the petitioner calling upon the petitioner as to why the environmental clearance should not be revoked, primarily on the following two grounds : (I) approval from the Standing Committee of Wildlife Board, was not obtained; and (II) permission for drawal of the ground water was not obtained.
8. On 15th May, 2012, the petitioner gave reply to the show cause notice, inter alia, stating that no Eco-sensitive Zone has been delineated till date. Thereafter, by impugned order dated 13 th September, 2012, respondent No.1 directed closure of the mine and suspension of the environmental clearance under Section 5 of the Environment (Protection) Act, 1986 for violation of the conditions. In the operative part of the order, it has been stated that (1) the petitioner has not obtained the requisite clearance from the Standing Committee for National Board for Wildlife (NBWL), as was required to be obt
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