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2018 Supreme(Bom) 608
IN THE HIGH COURT OF BOMBAY AT GOA
N.M. JAMDAR, PRITHVIRAJ K. CHAVAN, JJ.
South West Port Limited through its Unit Head & Authorised signatory Anthony Fernandes - Petitioner
Versus
State of Goa, through the Chief Secretary, Government of Goa, Secretariat & Others - Respondent
Writ Petition No. 173 of 2018
Decided On : 24-04-2018
For the Petitioner:S.S. Kantak, Senior Advocate with D.J. Pangam, Abhijit Gosavi, Advocates.
For the Respondents:Amin Jamadar, Additional Govt. Advocate, Mahesh Amonkar, Central Govt. Standing Counsel, Norma Alvares, A. Gode, Advocates.
Headnote:
Constitution of India,1950 - Article 226 - Water (Prevention and Control of Pollution) Act, 1974 - section 33A - National Green Tribunal (NGT) Act, 2010 - Section 4 - Business of import of Coal and other raw materials - Meeting of Pollution Control Board - ourt invoking extraordinary jurisdiction Constitution of India against denial by Respondent Ministry of Environment Forests & Climate Change (MOEF) of Petitioner’s application for terminal capacity enhancement at Berth Port Trust Vasco Gama- In alternative Petitioner is seeking clarification/modification of order passed National Green Tribunal- Ministry of Environment Forests & Climate Change has taken a stand that it cannot consider application of Petitioner for terminal capacity enhancement in view of order passed by National Green Tribunal on 22 November principal grievance of Petitioner is that nothing stops Ministry of Environment Forests & Climate Change from processing application and a direction to Ministry of Environment Forests & Climate Change decide application of Petitioner be issued- Secondly order passed by National Green Tribunal does not apply it and it should be so clarified or order be modified normal circumstances a prayer to direct authorities to decide a pending application on merits is innocuous- But manner in which matter has unfolded before us demonstrates that it is not so- That is why we are constrained to write an elaborate Judgment –Held, Court that jurisdiction of Supreme Court under High Court Constitution is extraordinary equitable and discretionary and it is imperative that petitioner approaching writ Court must come with clean hands and put forward all facts before Court without concealing or suppressing anything and seek an appropriate relief- If there is no candid disclosure of relevant and material facts or Petitioner is guilty of misleading Court his Petition may be dismissed at threshold without considering merits of claim same rule was reiterated Respondents submitted that attempt of Petitioner is to somehow get an imprimatur of Superior Court to dissipate opposition to its expansion plans submitted that even a routine order of this Court in Petitioner will be twisted as a stamp of approval and will be used and break a collective public movement against Petitioner- Court cannot accept this as a standalone ground in law to deny a relief- That order will be misconstrued is not a ground to deny it- As a general remark however we do observe that it is not uncommon that Court orders are misrepresented- It is often noted that even when simple orders directing authorities decide applications as per law are passed some times by mistake or design they are projected to public as if Court has mandated grant of application- Unfortunately many do not read orders of Court available on Court websites and go by incorrect reports- Though such aberrations individually may seem minor cumulatively they affect perception of people in existence of Rule of law and affect administration of justice in long run- We however leave it at that Judgment being answered against Petitioner we refuse to proceed further in our equity jurisdiction- It is open to Petitioner to take recourse to remedies as provided under law- We make it clear that if Petitioner approaches and adopts remedies provided under relevant statute those remedies will be decided on their own merits - Petition dismissed
N.M. JAMDAR, J.
1. The Petitioner, South West Port Limited, is a company engaged in the business of import of Coal and other raw materials. Respondent No.1 is the Government of Goa. Respondent No.2 is the Ministry of Environment, Forests & Climate Change, New Delhi.
2. The Petitioner has approached this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India against the 'denial' by Respondent No.2-Ministry of Environment, Forests & Climate Change (MOEF) of the Petitioner’s application for terminal capacity enhancement at Berth Nos. 5A and 6A at Mormugao Port Trust, Vasco-da-Gama. In the alternative, the Petitioner is seeking clarification/modification of the order dated 22 November 2017 passed by the National Green Tribunal. The Ministry of Environment, Forests & Climate Change has taken a stand that it cannot consider the application of the Petitioner for terminal capacity enhancement in view of the order passed by the National Green Tribunal on 22 November 2017.
3. The principal grievance of the Petitioner is that nothing stops the Ministry of Environment, Forests & Climate Change from processing the application and a direction to the Ministry of Environment, Forests & Climate Change (MOEF) to decide the application of the Petitioner, be issued. Secondly, the order passed by the National Green Tribunal (The Tribunal) does not apply to it and it should be so clarified or the order be modified.
4. In the normal circumstances, a prayer to direct the authorities to decide a pending application on merits, is innocuous. But the manner in which the matter has unfolded before us demonstrates that it is not so. That is why we are constrained to write an elaborate Judgment.
5. In the Petition, the Petitioner has stated its business particulars. The Petitioner has annexed the order passed by the National Green Tribunal, letters issued by Goa Coastal Zone Management Authority, proposal for Environmental Clearance dated 24 January 2001, a copy of the proposal for enhancement, Coastal Regulation Zone Notification and Minutes of the Meeting of the Expert Appraisal Committee. The Petitioner has averred in the petition, in short, as follows: Petitioner is granted the Environmental Clearance by the Ministry of Shipping, Government of India on 24 June 2001. Petitioner is operating from Berth Nos.5A and 6A at the Mormugao Port Trust since the year 2004. There is an agreement with the Mormugao Port Trust to construct and operate the Berth Nos. 5A and 6A on Built, Own, Operate and Transfer basis. The Petitioner has all the necessary permissions to operate the Berths, which were duly sanctioned. Petitioner was also granted Consent to Operate by the Goa State Pollution Control Board (Pollution Control Board) on 24 November 2001. Since the year 2004, the Petitioner has applied for and has been granted Consent to Operate under the Provisions of Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 (Water Act), as well as Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (Air Act ) in respect of the activity of handling coal and allied bulk cargo. The Petitioner has incurred a huge capital expenditure and is using best of technology and most environment friendly techniques at Berth Nos.5A and 6A of Mormugao Port Trust. The Petitioner, with the intention of modernizing and capacity enhancement of Berth Nos.5A and 6A, made an application to the MOEF to sanction the terminal capacity enhancement from the existing capacity of 7.5 MMTPA to the bulk handling of 12 MMTPA and multiple utilized cargo and steel product for about 2 MMTPA at the Mormugao Port Trust. The proposed capacity enhancement and modernization is to install better, modern techniques to avoid environmental degradation. Public hearings are conducted and the Petitioner has been granted the Terms of Reference by letter dated 19 June 2015 in respect of the said terminal capacity enhancement at Berth Nos.5A a
