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2023 Supreme(Guj) 281

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Aravind Kumar, Ashutosh Shastri, JJ.
Jusab Kasam Manjaliya – Petitioner
Versus
Union of India – Respondent
R/Special Civil Application No. 5509 of 2019
Decided On : 06-02-2023

Advocates:
Advocate Appeared:
For the Petitioner: J Yagnik
For the Respondent:Ms. Manisha Lavkumar Shah, Sr. Advocate, Mr Devang Vyas, Asg With Mr Parth Bhatt, Mr Rutvij S Oza, Mr. Parth H Bhatt, Mr Mihir Joshi, Senior Advocate For Singhi & Co

Headnote:

Constitution of India, 1950 – Article 226 – Environmental (Protection) Act, 1986 – Purpose of seeking reliefs – Implementation of Order – Non-implementation or partial implementation – Held, Court may deem it proper to dismiss writ petition with a liberty to writ applicant to initiate appropriate proceedings before National Green Tribunal under provisions of Act – Court expect that same may be looked into appropriately in interest of justice – Hence, Petition stands dismissed with a liberty to petitioners to avail an alternative efficacious remedy created under statute, i.e., National Green Tribunal under provisions of National Green Tribunal Act, 2010 and/or under Environment (Protection) Act, 1986 which may be availed of – It is made clear that this Court has not examined nor expressed any opinion on merits and on other contentions raised in petition and it goes without saying that it is always available to petitioner to raise same in appropriate forum – Petition dismissed.

JUDGMENT :

Ashutosh Shastri, J.

1. Present petition under Article 226 of the Constitution of India is filed for the purpose of seeking following reliefs:-

    A Be pleased to direct respondents and respondent MoEF in particular to place on record of this Hon'ble Court the steps taken towards implementation of Order dated 18/09/2015 and be further pleased to direct the respondent MoEF to place it on record reports, plans and schemes submitted by respective respondent and expert body pursuant to the order dated 18/09/2015 and the consequential preventive, protective, corrective and remedial environmental measures and steps initiated and implemented upon;

B. In the event of non-implementation or partial implementation of the Order dated 18/09/2015 and the consequential measures taken towards protection and prevention of the environment, Be Pleased to direct Respondent and respondent MoEF to implement the Order dated 18/09/2015 at Annexure-A in its true spirit and entirety and take all consequential preventive, protective, remedial and corrective environmental measures based on the reports, plans and schemes given by the respondent respective agencies and expert body as directed in the Order dated 18/09/2015;

C. Be pleased to Direct respondents and respondent Ministry of Environment, Forest and Climate Change in particular to provide petitioners with the Action Taken Report along with all the documents including report submitted by respective respondents and other agencies and expert body with regard and respect to every directions given in para. 15 of the Order dated 18/09/2015 passed by respondent MoEF at Annexure-A;

D. During the pendency and/or final disposal of this petition, be pleased to grant interim or ad- interim relief in terms of para. 11(A) and/or 11(B) and/or 11(C);

E. To pass any other and further reliefs that may be deemed fit and proper and in the interest of Justice and Equity.

2. The background of facts which has given rise to filing of present proceedings is that petitioners are stated to be permanent residents of Mundra Taluka in District Kutchh- Bhuj. Petitioner Nos.1 to 3 are fishermen of village Luni, whereas petitioner Nos.5 and 6 are farmers and businessmen residing in Mundra within geographical area of respondent No.6. Petitioners have stated that majority of them have attended public hearing for environmental clearance of the project of Waterfront Development and/or for Special Economic Zone. Petitioners as such are not only concerned but also adversely affected by any industrial growth in the area, especially on account of respondent M/s. APSEZL undertaking certain industrial activity which are stated to be hazardous to the environment and antithetic to the sustainable development principle. According to petitioners, the basic grievance is that order dated 18.9.2015 appears to have not been implemented in true letter and spirit to protect the environment against hazardous activities of respondent M/s. APSEZL.

3. It is the case of the petitioners they are fishermen and are unable to carryout fishing activity even if they possess licenses because of the activities undertaken by 6th respondent M/s. APSEZL which is hazardous to the environment. Project in question is for developing Waterfront Development which includes North Port, South Port, West Port and East Port at Mundra, District Kutchh and authority has extended the Environmental Clearance initially to M/s. Mundra Port and SEZ Ltd. (now, M/s. Adani Port and SEZ Ltd.). Same was extended by issuance of notification of Environmental Impact Assessment and under Coastal Regulation Zone Notification, 1991 for Waterfront Development Project on 12.1.2009. Said clearance was extended to the respondent with specific conditions which are stipulated in it and narrated by petitioners in paragraph 4.3 of the petition. In addition to such conditions, on 19.1.2009, an Addendum was issued by respondent MoEF, Government of India with respect to EIA and CRZ clearance accord

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