Dismissed

Ramchandra Vaman Naik and 2 Ors., v. M/S. Sesa Industries Ltd. and 5 Ors.

Bombay HC6 Mar 2012PILWP/4/2011

Case brief

AI extract

What is this about?

Petitioners challenged the Goan Government's 2007 approval of a pig iron plant expansion and environmental clearance, alleging policy violation, environmental harm, and fraud. The court held that policy changes are permissible, the clearance was valid based on expert assessment, and the petition failed.

What did the court decide?

Rule discharged; writ petition dismissed with no order as to costs.

Ramchandra Vaman Naik and 2 Ors., Vs M/S… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA

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PUBLIC INTEREST LITIGATION WRIT PETITION NO.4/2011

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1.	Ramchandra Vaman Naik House No.366/1, Dhakul Maini-Navelim, Bicholim, Goa
2.	Khemalo Sakharam Sawant Betul Wada, House No.181/1 Amona, Bicholim, Goa
3.	Shantaram Ganesh Ghadi House No.194, Fanarwadi- Navelim, Sanzuliem .. Petitioners.
	V/s.
1.	M/s. Sesa Goa Limited Sesa Ghor, 20 EDC Complex, Patto, Panjim, Goa
2.	The State of Goa Through the Chief Secretary Porvorim
3.	Department of Industries Trade and Commerce, Udyog Bhavan, Panaji
4.	The Ministry of Environment and Forests Paryavaran Bhawan CGO Complex, Lodhi Road, New Delhi.
5.	Goa State Pollution Control Board Dempo Towers, 1^stFloor, EDC Plaza, Patto, Panaji
6.	Goa Industrial Development Corporation, Plot No.13A-2, EDC Complex Patto Plaza,

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Panaji. .. Respondents

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Mr. K. Mukherjee, Advocate for the petitioners.

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Mr. Ravi Kadam, Senior Advocate with Mr. P. Rao, Advocate for respondent no.1.

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Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Additional Government Advocate for respondents no.2 and 3.

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Mr. C. A. Ferreira, Assistant Solicitor General for respondent no.4.

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Mr. A. N. S. Nadkarni, Senior Advocate with Mr. D. Lawande, Advocate for respondent no.5.

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Mr. A. D. Bhobe, Advocate for respondent no.6.

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CORAM :- S. C. DHARMADHIKARI &

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U. V. BAKRE, JJ.

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Reserved on : 31st January, 2012.

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Pronounced on : 6 th March, 2012.

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JUDGMENT : (Per S. C. Dharmadhikari)

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Rule. By consent, Rule is made returnable

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forthwith.

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The respondents waive service.

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By this petition under Article 226 of the

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Constitution of India which is converted into a Public Interest

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Litigation, the petitioners are praying for quashing an approval dated 30/03/2007 for a project, which has been undertaken by respondent no.1. The petitioners are also challenging the environmental clearances granted to this project on 03/06/2009. The petitioners are residents of villages Navelim and Amona in Bicholim Taluka of North Goa. It is their case that their family would be affected by the pollution and environmental degradation, which would be caused by the project of respondent no.1.

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The allegation is that the petitioners were not aware of a project of the first respondent as approved by the State Government until a construction of the compound wall began in December, 2009. When the petitioners enquired with the Village Panchayat and also made applications under Right to Information Act, 2005, then, the petitioners came to know that the first respondent has applied for approval and further that the said approval is to seek expansion of the capacity of its Amona Pig Iron Plant. This application was made on 23/02/2004. Incidentally, it is stated that the first respondent is a Public Limited Company and is involved in manufacturing of Low Ash, Metallurgical Coke and Pig Iron through blast furnace. The application that is made, states

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that it proposes to expand the existing capacity of their unit for manufacturing of pig iron through blast furnace route. This is at the existing location at Survey Nos.177 and 120 (part) of Navelim village in Bicholim Taluka of the State of Goa. It is stated that the first respondent stated in the application that its existing unit is located very close to Amona and Navelim villages of Bicholim Taluka. It is stated that the application that was made by the first respondent was rejected initially and that was on the basis of State Cabinet decision dated 16/06/2003. This decision is clear inasmuch as the State decided that no further applications for registration/ construction of melting units, casting units and Ferro Alloy units, sponge iron units will be permitted and this includes its expansion. Thus, the application of the first respondent for expanding the capacity of its Amona Pig Iron Plant, was refused on this basis. A copy of this letter / intimation is annexed at annexure 2 to the writ petition. This communication reads as under :

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“No.IND/HPCC/703/Vol-XVI/159/ Government of Goa Department of Industries, Trade & Commerce, Udyog Bhavan, Panaji-Goa

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Date : 11/07/2005

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To, M/s. Sesa Industries Ltd.,

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Sesa Ghar, EDC Complex, Patto, Panaji-Goa

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Sub : - Application for High Powered Co-ordination Committee Approval for manufacture of Pig Iron 800 Tonnes/day.

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Sir,

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With reference to your application dated 23/02/2004 on the above cited subject, it is informed that your request cannot be considered for Expansion of existing capacity for manufacture of Pig Iron 800 Tonnes/ day since the Government has taken decision that no further application for registration should be accepted as melting units, casting units, Ferro Alloys units, Sponge Iron units and also no expansion of existing unit should be permitted as communicated by Under Secretary (Industries), vide letter No.3/9/98IND (30) Part dated 10/07/2003 and letter No.3/9/98IND (30)/637 dated 11.7.2005.

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Yours faithfully,

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Director of Industries, Trade & Commerce”

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However, a High Powered Committee (HPCC) set up by the Government of Goa entertained the further application of the first respondent at its meeting held on 04/10/2006. The Committee decided to reexamine the proposal of the first respondent. Once the application was rejected in the light of the policy decision, there was no question of entertaining another application on the same subject/ proposal. If the State Government through its

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Committee communicated that it would abide by its earlier decision of not allowing further pig iron plants, then, there was no occasion for it to inform the first respondent that it should obtain NOC from the Village Panchayat. This clearly means that the project was to be sanctioned, but for ulterior purposes. Reliance is placed upon a note for Cabinet which is prepared by Department of Industries, State of Goa dated 14/03/2007, a copy of which is at annexure 3. It is stated that the reasoning of the said Department in this note is vague. There is no indication that as to why 2003 decision is being relaxed. There is no consideration as to why the existence of new technology, requires the 2003 policy to be amended and merely because the first respondent's alleged excellent track record in relation to environment protection, that does not mean that it was entitled to exemption from the general rule.

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The petitioners have placed reliance on various file notings and this is in pursuance of their application under Right to Information Act wherein, according to them, at various levels, the officials stated that in the light of the cabinet decision of 16/06/2003, the project cannot be approved. However, HPCC arbitrarily changed 2003 policy

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to allow the project on case by case basis and this is because of first respondent's efforts. These efforts are evident in somehow or the other gaining the approval, if the file notings are carefully perused. It is in such circumstances that the petitioners impugn the subsequent cabinet approval dated 30/03/2007.

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The petitioners have specifically alleged in the petition that the cabinet approval is needed because the first respondent's project has been mischaracterised as an expansion of the existing one. The project at village Navelim is 2.5 Kms. away from Pig Iron Plant at village Amona. It is a new and separate project. It has obtained separate environmental clearances. Therefore, this cannot be seen as expansion of existing Pig Iron Plant at Village Amona. The petitioners place reliance upon the contents of approval and the minutes of the 57^th meeting of the HPCC held on 04/10/2006 and contend that the first respondent was required to obtain NOC from the Panchayat. However, by a letter dated 04/05/2010 the Village Panchayat, Navelim has informed the petitioners that it has not issued any NOC (No Objection Certificate) to Pig Iron Plant (expansion plant in Survey No.177). This has been reiterated in subsequent

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letters dated 23/08/2010 and 07/09/2010 from this Panchayat and it also clarified that NOC produced by the petitioners after R.T.I request from the Department of Industry, Government of Goa did not emanate from the Village Panchayat. Thus, NOC, which is produced is a fraudulent one.

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As far as condition no.2 is concerned, i.e. in relation to prevention of pollution and protection of environment, the environmental clearance to the project granted on 03/06/2009 is also violative of mandate of Articles 14 and 21 of the Constitution of India. It is stated that the results of the cumulative impact assessment cannot be relied upon because the same does not indicate cumulative impact on the industries in the surrounding area. There is absolutely no indication that the concern of the Goa State Pollution Control Board with regard to widespread dust particles being spread in the vicinity of Pig Iron Plant has been redressed by the authorities under the Environment (Protection) Act, 1986. The suspended Particulate Matter (SPM) has been described as moderate, but that is falsified by report of the Goa State Pollution Control Board dated 06/07/2010. A perusal of this report indicates that there is

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seepage of salty waste water into fresh water lake and, therefore, there is impact on surface water. This objection has not been taken into account in the cumulative impact assessment. There has been no proper survey of the surface water quality in the assessment. In such circumstances, when no proper cumulative assessment has been carried out in the surrounding industrial units and when this vital material has been ignored, then, environmental clearance is also bad in law. It is stated that the project is going on without requisite clearances. It is, therefore, clear that the consent that is given by the Goa State Pollution Control Board on 04/03/2010 is ignoring several vital factors in relation to the environment and pollution. If the project approved is totally new project, then, misrepresentation by the first respondent Company should not have influenced the authorities in granting them clearances. They ought to have scrutinized the proposal on the basis that it is for establishment of a new plant. Once the distance between the two villages is 2.5 kms, then, by no stretch of imagination it can be said that this is an expansion of existing unit/ plant at village Amona. Reliance is placed upon the sketch map of the two villages and survey numbers to demonstrate the distance between the two projects/ units. It is contended

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that the above factors should have been taken into account and if any misleading information is provided by the first respondent, then, the project should not have been sanctioned and approved. For all these reasons, the petitioners complain that the approval and clearance is vitiated by non-application of mind and violates the mandate of Articles 14 and 21 of the Constitution of India. It is, therefore, prayed that the petition be allowed.

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It must be stated at the outset that when this petition was placed before this Court, the petitioners were directed to comply with the rules in relation to PIL framed by this Court and the matter was directed to be placed on board only on such compliance. Every requirement was to be complied with and ultimately, the registry scrutinized the petition and reported compliance therewith. Hence, an order came to be passed to this effect on 14/03/2011. Notices were issued to various parties including respondent no.1 and upon amendments being permitted, affidavits were taken on record. Another controversy in relation to motive of the one of the petitioners and the allegations made by one of them against the Senior Counsel representing the first respondent was dealt with by order dated 27/04/2011. Thereafter, the

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learned Counsel appearing for the petitioners sought time to challenge the environmental clearance. According to the petitioners, necessary grounds were also raised.

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After the preliminary objection was taken care of by this Court on 23/06/2011, directions were given to complete pleadings and on that basis the matter would be disposed of finally at the admission stage.

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On the basis of the above directions and orders in relation thereto that we have proceeded to hear the petition finally at this stage.

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It is now necessary to refer to the affidavits that have been filed.

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We have an affidavit of one N. C. Vhatte, who is working as business manager, Pig Iron Plant of first respondent and what has been urged therein is that the petition needs to be dismissed because firstly petitioner no.2 has private motive inasmuch as he is the the ex-employee of respondent no.1. He was removed from services of respondent no.1 Company. There are several disputes

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pending between petitioner no.2 and respondent no.1. He being a disgruntled person, at his instance, this Court should not take any cognizance of the allegations and statements in the petition.

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It is then urged that the writ petition is barred by gross delay and laches. There is absolutely no explanation as to why the petitioners have approached this Court to challenge the cabinet's approval date 30/03/2007 and environmental clearance dated 03/06/2009 belatedly. The challenge to the consent granted by the Goa State Pollution Control Board on 04/03/2010 would also not be of any assistance to the petitioners' case. The petition is filed after 11 months of the petitioners allegedly becoming aware of the construction of the compound wall. The petition is filed in October, 2010. The petitioners took their sweet time in complying with the PIL Rules. They were never in any urgency because repeatedly adjournments have been sought by them as well. For all these reasons and when there is no explanation for this enormous delay, the petition deserves to be dismissed on this short ground alone.

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The first respondent states that it has invested a

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sum of Rs.139.34 Crores in the project. The total costs of the project is Rs.1104 Crores, of which towards phase-I, the projected cost is Rs.582.67 Crores. The first respondent had placed several orders (total 168 out of 186) for the project expansion. At present expenditure of Rs.266.90 Crores has been incurred and there is committed expenditure of Rs.578.27 Crores through various orders. All the requisite permissions/ approvals have been granted and the project has been completed to the extent of 60 % of the civil and structural work. The first phase of Coke plant is almost ready and is about to be commissioned. In such circumstances, on this ground as well, the petition should not be entertained.

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It is directed that the decision taken at the meeting of State Cabinet dated 16/06/2003 is a policy decision of the Government of Goa. It is also open for the Government of Goa to change its policy decision. Such policy decisions are not amenable to challenge by means of a writ petition under Article 226 of the Constitution of India. The petitioners have no right vested in them to challenge such decision. The petitioners have suppressed the relevant and material facts and tried to demonstrate that whole change of

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policy has been brought about by the first respondent. There is no basis for making such irresponsible and fallacious allegations. It is stated that High Power Co-ordination Committee (HPCC) upon due verification that the proposal for expansion of existing units complies with laws, rules and regulation, referred it to the Government and the Government was pleased to approve it on 30/03/2007. As far as the environmental clearance is concerned, that has been obtained on 03/06/2009. That is also not vitiated inasmuch as the statements made in paragraph (d) of the synopsis and chronology to the petition and paragraph 6(c)(ii) are factually false and incorrect inasmuch as Maina lake is approximately at a distance of two Kms. from the Pig Iron Plant of first respondent. There is no possibility of alleged seepage of water from Pig Iron Plant into the lake. A letter dated 11/06/2010 and report of Goa Pollution Control Board dated 09/07/2010 also demonstrates that complaint was filed by one Ramchandra Naik against the first respondent for alleged seepage of water into the said lake. The said report of the Goa State Pollution Control Board at page 268 of paper book, does not show or anywhere refer that the alleged seepage is from Pig Iron Plant of respondent no.1. Therefore, what is attributed to the Board is incorrect and

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the attempt of the petitioners to somehow or the other stall the project, is nothing but malafide.

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What has been stated very vehemently by the first respondent is that the Pig iron Plant is treating its water which is recirculated within the premises thereby following zero discharge concept. There cannot be any seepage from the Pig Iron Plant. Therefore, several false statements including that this is not an expansion of the existing project, are made. It is stated by the first respondent that the complete report for Pig Iron (De-bottle necking) project of December, 2010 should have been placed on record to understand the impact of the expansion. For all these reasons, the petition be dismissed.

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The petitioners have termed the approval as bad in law inasmuch as the same is granted for ulterior purposes. However, the first respondent in its affidavit has referred to the communication dated 11/07/2005 of Director of Industries, Trade and Commerce informing the first respondent that their proposal for expansion of the existing capacity cannot be considered on the ground that the Government has taken decision that no further application

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for registration should be accepted as melting units, casting units, Ferro Alloy units, Sponge iron units. Further no expansion of existing unit should be permitted. Upon receipt of this communication, the first respondent represented before the Chairman of HPCC namely the Chief Minister of State of Goa and explained that the activities of the first respondent do not come within the category of melting units, casting units, Ferro Alloy units, Sponge iron units and, therefore, the application be considered afresh. The communication dated 15/09/2005 addressed to the Chairman is referred to in this behalf. Thereafter, the then Chief Secretary, State of Goa visited the site. He was explained the activities of the first respondent. Thereafter, there was a communication dated 16/05/2006 from the first respondent contending that their activities do not come within the purview of policy decision and, therefore, the permission to proceed with the expansion plans be granted. A fresh detailed application was made on 23/05/2006. The petitioners ought to have verified all these facts and then alleged that the decision of the High Powered Coordination Committee at its 57^th meeting dated 04/10/2006 is taken for ulterior purposes. These events would show that the same is not taken with any motive or to favour the first respondent in any

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manner.

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Before dealing with any averments of the petition, the first respondent has pointed out the details of its manufacturing activities in following words :

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“i) Project in question was conceived for the purpose of expansion of the Pig Iron Plant existing in the same Industrial Complex since the year 1992. The Permissions/ Clearances/ No Objection Certificates from the various Statutory Agencies, including the High Powered Coordination Committee (HPCC), date back to the period between the years 2007 to 2010. The Consent to Establish dated 04/03/2010, also came to be issued. I state that when the project was initially established in the year 1992, the Law did not require this respondent to get any Environmental Clearance for the said Project and therefore, at that point of time, the Ministry of Environment and Forest had no role to play in the matter; ii) The Project has been approved/ cleared by all the Statutory Authorities, including in particular, the Ministry of Environment & Forests which has granted

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the Environmental Clearance on 03/06/2009 after a detailed consideration and upon having ensured several environmental compliances. Such Permission granted under the EIA Notification of 2006 issued under the Provisions of the Environment Protection Act, has an overriding effect. I state that since the initial project which was begun in the year 1992, did not require the Environmental Clearance from the MOEF, the MOEF while granting the Permission for Expansion did not mention the word 'expansion' in the MOEF Clearance. However, the fact that the respondent no.1 already had a Pig Iron Plant was very well known to the MOEF and was so recorded in REIA report.”

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It is therefore, clear that the application was made on 23/05/2006 in the backdrop of all the provisions and permissions and this is how the same was cleared. It is stated that prior to the clearance by the HPCC and the State Cabinet, the following clearances / No Objection Certificates have been granted, copies of this Clearance and No Objection Certificates have been annexed :

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“(6)(a) The Goa State Pollution Control Board (GSPCB) vide communication No.8/10/06PCB/Vol.XVII/2045 dated 11/8/2006; b) EDC Limited vide Communication No.EDC/HPCC/3838 dated 14/8/2006; c) Chief Engineer, Public Works Department vide communication No.PWD/CE-I/Tech/ F.1.3. 05/051 dated 14/8/2006; d) Goa Industrial Development Corporation (GIDC) vide communication No.ID/ED/HPCC /Vol.XIV-10242 dated 29/8/2006; e) Inspectorate of Factories & Boilers of the Institute of Safety Occupation, Health & Environment, Government of Goa vide communication No.CIF/016/2006/1292 dated 7/9/2006;

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f) Town and Country Planning Department. Government of Goa vide communication No.35/10(5)/06-TCP/2856 dated 3/10/2006; g) The Chief Electrical Engineer, Electricity Department, Government of Goa vide communication No.142/1/CEE/ Tech/06/1043 dated 9/10/2006;

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h) Village Panchayat of Navelim vide communication No.VPN/Bich/NOC/06-07 dated 24/1/2007.

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i) Village Panchayat of Amona vide communication No.VPA/F69/Sesa/06-07/639 dated 27/11/2006.”

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What has been highlighted is that there are several measures

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initiated for protection and safeguarding the environment and avoid pollution. It is stated that the application for new clearance was made on or about 30/07/2007. Several environmental compliances as mandated under the notification termed as EIA Notification, 2006 came to be made. The terms and reference in this regard came to be finalised and issued by the Ministry of Environment and Forest. The environment impact assessment report and environment management plan came to be prepared. After several deliberations MOEF has issued the necessary Environmental Clearance on 03/06/2009. It is stated that there is State of Art Technology and methodology employed so that the water generated from the plant is recycled and reused within the project site. There is zero discharge model. It is stated that the State of Art Technology and Clean Development Mechanism (CDM) requires several steps and measures, which have been closely undertaken. A Sesa Waste Heat Recovery Power Plant is such that from this project 30 Mega Watt waste heat power is generated and carbon credit is earned by the first respondent. Further the project on completion involves setting up a Waste Heat Recovery based Plant for generation of 60 Mega Watt power and also mechanism and methodology as explained in para 9

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of the first respondent's affidavit.

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The principal contention that the first respondent has misled the authorities while obtaining the clearances and particularly that the same is for expansion of the existing units, has been dealt with in paragraph 10 of this affidavit in the following words :

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“Further, it is denied that the Project as proposed amounts to setting up with a New Plant as alleged by the petitioner. The existing Plant at AmonaNavelim, Bicholim-Goa, is in the same Industrial Complex, which is incidentally fenced/ cordoned of, so as to constitute a composite property. The existing unit is located very close to the Amona and Navelim Villages of Bicholim Taluka. Merely because the expanded unit extends into Navelim Village, it is submitted with due respect, that the same cannot be styled as a 'New Unit' as alleged. The entire Industrial Area, allotted by GIDC admeasures over 12 lacs square meters or thereabouts. In the circumstances, the reference made by the petitioners to the distance of 2.5 kilometer, is with respect, irrelevant or not suggestive, of the circumstance that there is no expansion proposed. I state that in fact the existing units and the expansion units are adjacent to each other and it is a chain of units

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which is evident from the plan attached hereto which shows the exact location of the existing units and the expansion units. I state that the Petitioners have suppressed the material fact and rather suggested false fact by stating that the distance between the existing and the expansion plant is 2.5kms without verifying the factual situation at the site. In first place, the statement of the Petitioner is not only incorrect but has been made deliberately in order to confuse and create prejudice and mislead this Hon'ble Court. The Petitioners have suppressed the fact that it is within the Industrial Complex of this Respondent no.1 that the Pig Iron Plant and its expansion plant are situated. Secondly, it is within the same industrial complex of this Respondent the existing Pig Iron Plant, two metcoke plants and by the side of which the expansion of Pig Iron Plant is coming up. The Petition has falsely suggested as if one plant is existing at one village and the other one is coming up in another village. The Petitioner has deliberately tried to confuse, when in fact the existing plant and the expansion plant is coming up in the same industrial Complex. The Petitioner ought to have known that by expansion of Plant means augmentation of production capacity either by addition of Unit or upgradation of existing Unit with new state of art technology and both these things amount to Expansion. It is important to mention here that not only are the two units are in the same complex but are so situated and

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planned with a purpose and object namely, the existing Metcoke plant of the Respondent is situated immediately next to the existing Pig Iron Plant and the expansion Unit of the Pig Iron Plant is on the side of the expansion of the Metcoke plant which is adjacent to the existing Metcoke plant, as the metallurgical coke produced in the Metcoke plant is the main raw material for the Pig Iron Plant, I state that in addition to this the planning of industry is done with the help of Industrial Designers who are expert in this sphere and who have taken into consideration the techno-commercial aspects of the project. I state that the heat/gases of the Pig Iron Plant are not left off for burning or smoked out in the air but the heat and the gases are used as fuel in the waste heat recovery based power plant for generation of clean Electrical Energy which is also strategically located in the same complex. I state that in fact expansion project is designed and located in such a way and the Units are located in such a manner that the heat and gases which are supplied to the Power Plant are used efficiently. Had these units were not located close to each other Else, the heat and the gas would not have most of the heat from gases would have wasted before entering the power plant. I state that the location of the industry is planned in such a manner that the heat and the gases which would be left off or burned are being used as a fuel for generating a clean Electrical Energy

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which is a scare and much required commodity for overall development. I state that the internal use of the heat and gases without letting them in air reduces pollution and also global warming which otherwise be have caused thereby supporting the cause of Environment Protection totally. The stray references to the contrary in the Minutes of the Appraisal Committee Report of MOEF, possibly proceed on the basis that the MOEF was considering such Project for the first time, since the existing project was set up in the year 1992 or thereabouts, when there was no requirement for obtaining any Environmental Clearance under the EIA Notification of 2006. However, from the various Documents/Reports submitted/available with the MOEF, it is apparent that the Project involved expansion of that existing Pig Iron Plant, by use of modern state of the art and Clean Development Mechanism (CDM) technology. ”

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Therefore, once, the petitioners have not pleaded and pointed out any provision of law, which bars an establishment of the project and that the project is fully legal and authorised, then, this Court should not entertain the petition. It is not as if the first respondent has approached the State of Goa for the first time in relation to this project. From the year 1992, the first respondent has been utilising

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the lands allotted to it by the Goa Industrial Development Corporation. The lands are of the GIDC and located in an industrial / notified area. A Pig Iron Manufacturing Plant of the first respondent is in existence apparently from 1992. The present project involves expansion of the same. Assuming that even expansion requires environmental clearances and standards therefor are the same as for new project or establishment of a new unit, even then, all the clearances have been duly obtained. There is nothing malafide or illegal about the approvals or the project as a whole. The project has been highlighted in the subsequent paragraphs of the affidavit and all the allegations in the writ petition have been denied.

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There is also clarification given with regard to the various meetings in relation to the project and the Village Panchayat's NOC. However, this is without prejudice to the argument that there is no requirement in law of obtaining such permission or NOC from the Panchayat. Even Environmental study would indicate the unit as proposed expansion of its existing unit. The process document has been relied upon and that makes the aspect amply clear. The petitioners ought to have verified this position and should

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have carefully gone through the environment assessment study. That study should have been referred to in its entirety. The environmental impact assessment study is carried out around 10 Kms. radius surrounding the proposed project site comprises the baseline data and additional impact due to proposed expansion project. Besides the statements and reports from this Authority being referred to, there is also reference made to the report of National Environment Engineering Research Institute (NEERI). For all these reasons, it is submitted that the petition be dismissed. As to why there is necessity for expansion is also spelt out in paragraph 23 of this affidavit. To this exhaustive affidavit filed on 05/04/2011, there are several annexures.

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There is yet another affidavit which is filed on behalf of the State and particularly by the Director of Industries, Government of Goa. In that affidavit, what has been stated is that the petition challenges the cabinet decision, but the cabinet decision cannot be challenged because this decision is taken on policy matters. The policies of State are immune from challenge unless it is demonstrated that the same are grossly arbitrary and violative of any provisions of law or the constitutional mandate enshrined in

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Articles 14 and 21 of the Constitution of India. The whole petition proceeds on the basis as if the State Cabinet acted to assist the first respondent hastily and by sacrificing vital interests of the public and particularly in relation to the environment. The position is otherwise and the acts of the State are completely bonafide. The earlier application made by the first respondent was rejected and the rejection was informed in writing. The rejection was also informed after taking into account the relevant factors. Subsequently, another application was made by the first respondent and the request was that the proposal should be reexamined. The Note for Cabinet was put up in the light of this application and it was explained as to how new technologies, which are available to control pollution, would make it appropriate for reviewing the earlier cabinet decision. The Cabinet has not favoured anybody muchless the first respondent inasmuch as the proposal placed before it itself indicates that the earlier decision be reviewed so as to permit consideration of the applications made on case to case basis. This was to attract investment. The track record of the first respondent was also brought to the notice of the authorities. It is not as if that the earlier decisions on policy matters cannot be reviewed. The decision taken in the year 2003 was in the context of the

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conditions prevailing at that point of time. Later on the matter was examined by HPCC i.e. High Powered Coordination Committee consisting of Chief Minister, the Minister for industries, the Chief Secretary, the Secretary (Industries), Chief Inspector of Factories and Boilers, the Chief Town Planner, the Managing Director of Goa Industrial Development Corporation, Member Secretary of the Goa Pollution Control Board, Director (Science, Technology and Environment), then Electrical Engineers amongst them. The view of the HPCC on the subject, which consists of eminent persons and experts in the field, was duly considered and after due deliberations, the earlier decision dated 16/03/2003 was reconsidered by a fresh decision dated 30/03/2007 and that decision reads as under :

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“Reg.A.D.

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No.IND/DEV/LM/674/95/4776 Government of Goa, Department of Industries, Trade & Commerce, Udyog Bhavan, Panaji, Goa.

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To, M/s. Sesa Industries Ltd., Sesa Ghor, 20, EDC Complex, Patto, Panaji, Goa.

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Sub: Your proposal for expansion of the existing capacity of your unit for manufacture of Pig Iron through blast furnace route at the existing location at Survey No.177 and Part 120, Navelim

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Village in Bicholim Taluka, Goa.

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Sir,

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With reference to the subject cited above, we are pleased to inform you that your proposal for expansion of the existing capacity of your unit for manufacture of Pig Iron through blast furnace route, at the existing location at Survey No.177 and Part 120, at Navelim Village, in Bicholim Taluka, Goa, which was placed before the High Powered Co-ordination committee in its 58^th meeting held on 07/03/2007, in the Conference Hall, Secretariat, Porvorim, Goa, wherein it was decided to refer the matter to the Cabinet for suitable decision. Now, Cabinet in its meeting held on 30/03/2007 has approved the proposal. The unit should comply with the following conditions :-

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The Company shall obtain all the required NOCs/Licences from the concerned authorities before setting as well as before starting the production and they should comply with all observations, requirements imposed by various authorities.

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The unit shall provide at lest 80 % employment to Goan workers.

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The waste generated by the unit should be properly and scientifically disposed off to avoid any damage or adverse effect to environment.

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The approval will be valid for a period of one year and the party should take effective steps to implement the project during this period and the progress report should be sent to the Directorate of Industries, Trade and Commerce from time to time.

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The party should also inform the exact date of production to the Department of Industries, Trade and Commerce immediately after the commencement of commercial production. ”

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Further, it is informed that the unit should adhere to all the rules and regulations as specified by the concerned authorities from time to time. In case, the unit fails to comply above conditions, approval

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granted by the High Powered Co-ordination Committee shall be cancelled.

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Kindly acknowledge the receipt.

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Director of Industries, Trade & Commerce.

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Copy for information to :-

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Chief Secretary, Secretariat, Porvorim, Goa.

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Secretary (Industries), Industries Department, Secretariat, Porvorim, Goa.

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Secretary to Hon'ble Chief Minister, Secretariat, Porvorim, Goa.

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Reference is made to the approval granted and it is urged that the approval is for expansion of the existing capacity of the plant. It is not a completely new project. The existing plant of the first respondent is Pig Iron Plant. The proposed expansion is also for Pig Iron Plant as admitted by the petitioners themselves. The letter dated 30/07/2009 extending the validity of the approval granted also clearly provides that the approval is for expansion of the existing capacity from the present capacity i.e. 2,10,000 MT/ year by 2,85,000/- MT/ year i.e. total 4,95,000 MT/ year of Pig Iron Unit through Blast Furnace. The expansion is permitted in survey Nos.177 and 120 of Navelim village. The plot has been allotted to first respondent by GIDC. The existing plant

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of the first respondent though about 2.5 Kms away from the proposed expansion and spread over the villages of Amona and Navelim, is within the same contiguous composite area, which is in possession of the first respondent. In such circumstances, there is no infirmity in the decision of the Cabinet and the petition be, therefore, dismissed.

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There is an affidavit, that has been filed by Dr. S. K. Susarla, the Director, Ministry of Environment and Forest, Government of Goa, India in which it is stated that the environmental clearance was accorded by respondent no.4 to respondent no.1 for blast furnace (0.9 MTPA), Sinter Plant (2 MTPA), Coke Plant (0.6 MTPA) and Waste Hit Recovery Power Plant (60 MV) on 03/06/2009 based on the recommendations of the Expert Appraisal Committee (Industry) after following the due process laid down in the Environment Impact Assessment (EIA for short) Notification 2006. In paragraphs no.5 to 8 of this affidavit, apart from denials, what has been stated is that EIA study comprises of base line data generated inclusive of cumulative impact of adjacent existing units and additional impact due to the proposed project. The detailed cumulative impacts of the industries including Pig Iron Plant of M/s.Sesa Goa Ltd. at

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village Amona, Bicholim within 10 Kms. radius, has been assessed and given in the chapter 3 of EIA report- baseline environment status. It also gives environmental impacts on the surrounding industries and Chapters 3 and 4 of the said report give appropriate prediction. Thereafter, reference is made to air, water, noise, soil, socio-economic factors and samples collected by respondent no.1 as per the terms of reference and it is stated that the same has gone into the environmental clearance. Therefore, it is not as if the environmental clearance has not been preceded by any proper or complete study as urged or that the said is incomplete or defective. The experts have gone into all the factors after referring to terms for the clearance. These are technical parameters, which are set by the technical experts and, therefore, the petition should not be entertained.

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There is rejoinder of the petitioners which more or less reproduces their allegations made earlier. However, the map of the villages is referred to therein. It is stated that the respondents do not deal with certain vital matters raised in the petition. A reference is made to the minutes of HPCC meeting, notes put up for cabinet consideration and it is urged that reading of the same would

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reveal that it is only to assist the first respondent that the policy has been altered or changed. Then, the environment clearance is faulted inasmuch as the cumulative assessment fails to consider the future project and now salty water is being discharged into Maina lake from the Amona plant. The Goa State Pollution Control Board has filed an affidavit. Reference may not be necessary to the same. There is also no necessity of referring to any further affidavits i.e. dated 01/06/2011 and 01/07/2011 save and except one rejoinder of the petitioners dated 04/10/2011. In this rejoinder, what the petitioners highlighted is the fact that the argument that EIA Notification has not been challenged, has no merit because the petitioners can point out that this notification required certain conditions to be complied with and if those conditions are not adhered to the clearance granted on 03/06/2009 is bad in law. Considering the nature of the relief, there is no necessity of challenging the EIA Notification, 2006, this is the contention that they have raised in one of the rejoinders that has been filed on 01/06/2011. The factors, which should be considered include environmental effects or the potential for cumulative impacts with other existing or planned activities in the locality. In that Section, the developer is supposed to provide information about the other projects, which may

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arise out of project applied for, set of precedents for later developments and state whether there are any existing or planned projects for similar effects. It is not known as to what information was provided by respondent no.1 to these questions and/ or whether any future planned projects with similar effects in proximity were in fact mentioned as required. The cumulative impact assessment in the present case, contained in the Baseline Environmental Status at chapter III of the EIA report makes no mention of any future planned project in the 10 Kms. radius. There is no specific mention at page 152 of the expansion project of the Amona Pig Iron Plant of respondent no.1. EIA report of that expansion contained at page 423 onwards discloses that Amona plant will be expanded from 2,92,000 TPA to 5,00,000 TPA by June, 2013. There was no consideration of the future impact of that project in 10 Kms. area around Navelim Pig Iron Plant as required by the notification. Cumulative Impact Assessment of the industries in 10 Kms. radius of Amona Pig Iron Plant is also flawed and resolutions for the same are set out in this rejoinder. It is also alleged that there is failure to take into account the relevant evidence in relation to baseline data and particularly the water contamination attributable to the industries considered in 10 Kms. radius of

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the proposed Navelim Pig Iron Plant. It is stated that whilst this has apparently been done in relation to water bodies listed at paragraphs no.3.6, page 160, there is no communication that this has been done in relation to Maina lake, which is admittedly within the catchment area of the study.

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There is an affidavit-in-reply which has been filed to these objections raised in regard to environmental clearances and that is by the Member Secretary of the Goa State Pollution Control Board. The affidavit is in relation to the environmental issues. This affidavit states as under :

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I, Srinet Kothwale, major of age, Indian National, residing at Aroba, Pernem, Goa, do hereby on solemn affirmation, state and submit as under :-

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I state that I am presently working as Member Secretary in the Goa State Pollution Control Board and am authorised to file the present Affidavit. I state that this Respondent has been served with a copy of an Affidavit-inrejoinder, dated 1/10/2011, and I am filing this Reply in response thereto. I repeat and reiterate what has been stated by me in my earlier Affidavit and deny anything contrary thereto. I state that I am not dealing with each and every

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contention/ averment made in the Affidavit-inrejoinder and the averments /contentions which have not specifically been dealt with and / or denied by me may not be taken as having been admitted by me.

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I state that without seeking the leave of this Hon. Court, the Affidavit-in-rejoinder, has been filed and served on this Respondent, without having affirmed the same or without having even verified the same. I state that paragraphs 3, 4 and 5 relate to matters of a highly technical nature which can be dealt with only by a qualified Environmental Engineer. The contents of these paragraphs could not be affirmed by the Petitioner as being true to his knowledge without having first verified the correctness or otherwise of the statements and implications involved in the same.

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I respectfully state that the Petitioner is not an Environment Engineer nor is he an Engineer who is qualified to deal with such things.

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I respectfully state in the present case, a fraud has been alleged at paragraph 6. I state that fraud is a serious matter and cannot be casually averred or alleged. I state that time and again the Hon'ble Courts have held that in a Public Interest Litigation, the petitioner / Applicant cannot take liberties to file any statements and make any allegations. It is required of a party before filing an Affidavit, to study the matter in complete detail and only then

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file an Application. In the present case, the averments made in the Affidavit-in-rejoinder by the Petitioner have been made in a very casual manner. I state vide the said Affidavit-inrejoinder, the Petitioner has stated that paragraphs 1 to 6 are true to his own knowledge and that paragraphs 1 to 6 are Submissions based on legal advice. Such an Affidavit is impermissible in Law. This in itself shows that this Affidavit-in-rejoinder has been perforced in a very casual manner without having made any detailed study.

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Without prejudice to the aforesaid and especially on account of the fact that the Petitioner has without any basis, raised certain averments alleging discrepancy. I shall deal with the same as under :

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I state that vide letter bearing No. F.No.J11011/946/2007-IA-II(I), dated 03/06/2009, M/s. Sesa Industries Limited obtained an Environmental Clearance from the Ministry of Environment and Forests, Government of India, for the manufacture of 6 lakh tonnes of Met Coke in addition to the present capacity. Annexed hereto and marked as Exhibit 'A' is a copy of the Environmental Clearance dated 03/06/2009.

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I state that vide Application dated 14/09/2009, M/s. Sesa Industries Limited applied to the Board for Consent to Establish (NOC) under the Water Act and Air Act, for the manufacture of 3 lakh tonnes of Met Coke at first

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the instance, (i.e. half the capacity as approved in the Environmental Clearance). 9. I state that vide Consent to Establish (NOC ) Order beairng No. 5/4462/09-PCB/ 8510, dated 04/03/2010, the Board granted M/s. Sesa Industries Limited the Consent to Establish (NOC) for the installation of equipment/ machinery/ manufacture of a Coke Oven for the manufacture of Met Coke) of quantity of 0.3 million tons per annum.

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I state that vide application dated 14/03/2011, M/s. Sesa Industries Limited applied to the Board for Consent to Operate under the Water Act and Air Act, for the manufacture of 3 lakh tonnes of Met Coke at the first instance, (i.e. half the capacity approved in the Environmental Clearance). I state that four stacks are mentioned in the Environmental Clearance is with respect to the total production viz., 6 lakh tonnes. However, in the instant case, the Consent to Operate and the Consent to Establish has been granted by the Pollution Control Board for only half the capacity that is 3 Lakh tonnes and that is why only two stacks have been mentioned in the Consent Order. I therefore state that the present Affidavit-in-rejoinder has been filed by the Petitioner without having applied a proper mind to the facts and circumstances of the present case and this Affidavit-in-rejoinder in our respectful submission is nothing but an abuse of Process of Law.

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I state that vide Consent to Operate Order bearing Nos. 5/4462/09-PCB/3005 and 5/4462/09PCB/3006, dated 08/09/2011 respectively issued under the Air Act and the Water Act, the Board granted M/s. Sesa Industries Limited Consent to Operate ( for trial production) for pre-heating of 72 Nos. of non-recovery coke ovens and for the trial production of Metallurgical coke of a quantity of 750 tons / day. The said Consent to Operate has been granted only for a limited purpose of pre-heating of 72 non-recovery coke ovens so as to enable the unit to test the adequacy of the plant and machinery as well as pollution control equipment.

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I state the Condition No.3 of the Consent of Operate Order dated 08/09/2011 issued by the Board under the Air Act ( for trial production) stipulates that :

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Quote

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The Applicant shall maintain and operate an Air Pollution Control System consisting of a baghouse connected to a charging car, coke screening plant and coal crushing system. The process emissions should be connected to two stacks of 35 meters above the ground so as to restrict the emission level to the following standards:

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Sr. No.	Name of equipment / Installatio n	No. of Install- ations	Capaci -ty	SO2 Kg/ Hr	Particula te matter mg/Nm3
1.	Coke Ovens	72 nos.	32 coal/ oven	---	150

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I state that the Environmental Impact Assessment Report submitted by M/s. Sesa Industries Limited at Pg. No. 183 indicates that there would be four stacks and the height of the stacks would be 54 meters.

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I state that Entry No. 64 of the Environment Protection Rules, 1986, states that the height of the stack of Beehive Coke Oven Plants ( i.e. Non-recovery, similar to the one installed by M/s. Sesa industries Limited), should be 20 meters.

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I state that M/s. Sesa Industries Ltd. has submitted a letter dated 10/02/2010 to the Board requesting that the stack height of the Coke Oven Plant be read as 35 metres instead of 54 metres. I state that vide the said letter M/s. Sesa Industries Limited had also submitted a technical justification in this regard. I state that the said letter was submitted even prior to the grant of the Consent to Establish.

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Annexed hereto and marked as Exhibit 'B' is a copy of the letter dated 10/02/2010 from M/s. Sesa Industries Limited.

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I state that this letter was considered and

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approved by the Board, as the height of the stacks to which process emissions were proposed to be connected by M/s. Sesa Industries ( i.e. 35 meters) is more than the height specified in the Environment Protection Rules (i.e. 20 meters) and also due to the fact that the emissions from the stacks were not proposed to be dispersed but rather are to be utilised for production of electricity through a Waste Heat Recovery Boiler.

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I state that the project proponent i.e. M/s. Sesa Industries, is in the process of establishing a Power generation unit, along with the Coke Oven Plant. I further state that the heat generated from the emissions of the Coke Oven will be utilized in the power generation plant for the production of electricity.

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I state that whatever has been stated hereinabove is partly true to my knowledge and partly based on the records available with the Respondent Board.”

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Thus, the first respondent has sought to clarify the matter with regard to the environmental clearances and the details thereof. It has been clarified that the consent to establishment has been granted by respondent no.5 to the first respondent for only 50 % of the environmental clearance capacity for which auxiliary facilities are required for the operation of units. It has been clarified that the project

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consists of two phases and under each phase, the coke within the plant will have two stacks. The consent to operate granted on 08/09/2011 is with regard to the first phase of the project and that too for trial production. How the entire system will work has then been clarified and it is stated that all aspects in relation to the environmental issues have been taken care of and, therefore, the apprehension that is expressed by the petitioners has no basis.

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It is on the above material that we have heard the submissions of Counsel appearing for the parties.

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Mr. Mukherjee, learned Counsel appearing for the petitioners submits that if the map showing the survey numbers in village Amona and Navelim is perused carefully, it will be clear that the argument that this is a expansion of the existing unit, is completely baseless. This map, which is at page 618 of the paper book would show that the existing Pig Iron Division is in distinct village and the survey numbers are also clearly identified. This existing plant is at survey no.205, 206 and 207. If the maps at pages 602 and 618 are superimposed, it will at once become clear that the proposal can never be termed as expansion of the existing unit.

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Therefore, an application together with the misleading map was presented by the first respondent. This application was rightly rejected relying upon the policy decision. The policy decision is clear inasmuch as it does not envisage grant of permission or approval for expansion of existing unit. Therefore, on 11/07/2005, respondent no.1 was informed by the Director of Industries, Trade and Commerce, Government of Goa that the Government has taken decision that no further application for registration should be accepted as no melting units, casting units, Ferro Alloy units, Sponge iron units and also expansion of existing units should be permitted. Shri Mukherjee has placed reliance upon the Note for Cabinet and particularly the proposed resolution before the Cabinet which refers to the expansion of existing units. It states that the guidelines that are proposed for consideration and approval of the Council of Ministers based on which the policy decision was taken on 16/06/2003 only excludes amalgamation to add up capacity and that may be allowed. The instant proposal or project cannot be said to be amalgamation. It is in such circumstances and when there is no existing plant at village Navelim at Survey Nos.177 or Survey No.120/2, then, it is evident that the alleged change in policy is nothing but an exercise to favour the first

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respondent. Shri Mukherjee has placed heavy reliance on the fact that the policy of 4 years was overturned by the High Powered Coordination Committee. He submits that the note that is put up before the Cabinet would indicate that there were four proposals out of which two proposals were of Sesa group of Companies. Even at that time, it was evident that the first respondent had stated that the proposed project was for manufacturing of Pig Iron 800 Tons per day at Navelim, Bicholim, Goa. The file notings, a copy of which is at page no.31 of the paper book would show that no documents were submitted except a site plan with HPCC format. The whole attempt then was to somehow or the other assist the first respondent. This file noting is of 27/02/2006. The first respondent then was asked to submit documents and further notings on the file would show that only partial compliance was made of this requisition.

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Mr. Mukherjee has placed heavy reliance on the fact that the proposal of M/s. Sesa Industries seems to have been circulated for comments of the Department of Electricity and Public Works, Government of Goa. The files have moved only to clear the proposals of the first respondent. That is evident by what appears in the remarks

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and the notings on the file. Mr. Mukherjee has placed reliance on the remarks, wherein it is recorded that the comments from all departments to whom the proposal was forwarded, have been received except the Public Works Department. Thus, the entire movement of the files was aimed at clearing the project of the first respondent somehow or the other and if necessary by altering the existing policy. This is not a case according to Shri Mukherjee, where the petitioners have challenged the policy decision. This is a case, where the petitioners allege specifically that the policy decision, which was in force for more than four years, was altered to suit the project and proposal of respondent no.1 and the decision to clear the proposal was already taken. Thus, towards that end, the policy decision came to be altered. In these circumstances, this is not a matter, where the petition can be dismissed on the ground that there is challenge to the policy decision. The decision and approvals are taken at the instance of and at the behest of first respondent and that is evident from the file notings and he takes us through the file notings at page Nos.39 to 45 and submits that nothing in these files would demonstrate that the policy was sought to be altered on account of changed circumstances and is changed in general.

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The policy was given a go bye and completely altered only for the purpose of respondent no.1. Therefore, a completely fraudulent, fabricated and misleading proposal of the first respondent has been sanctioned and approved by the impugned decision/ approval. Such an approval and sanction is wholly vitiated and, therefore, must be set aside. Mr. Mukherjee submits that the mandate of Articles 14 and 21 of the Constitution of India has been violated and, therefore, this Court's intervention is necessary.

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While highlighting the issues in relation to environmental assessment and challenge of the petitioners to the environmental clearance dated 03/06/2009, it is urged by Shri Mukherjee that the policy decision taken on 16/06/2003 not to permit setting up of new industries and even permitting expansion of existing units was taken in the interest of environment and ecology. There is clear reference to the same. Further there was shortage of power. Once these two important reasons are assigned for not permitting even expansion of existing units, then, no departure therefrom was permissible. No policy decision or alteration therein can be permitted if the same violates the mandate of Article 21of Constitution of India. It is clear that

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when the first respondent was pressing for clearance of its proposal and projects by writing letters to the Chief Minister of the State and even persuading the EDC, then, environmental impact of the project should have been studied and considered with greater seriousness. The comment of the EDC in relation to this is very clear and that is to facilitate the setting up of the unit at Navelim. The EDC is concerned only with the industry's growth and generation of employment. If economic development sacrifices environmental and ecological concerns completely, then, it is violative of the mandate of Article 21 of Constitution of India. The focus should be to strike a balance between development and protection of environment and ecology. Such a balance has not been maintained in the present case. It is apparent that even the Goa Industrial Development Corporation has hardly taken into account these issues.

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It is in such circumstances that Mr. Mukherjee submits that the Pollution Control Board and the role of the Central Government becomes vital. He submits that future expansion has to be taken into account. He submits that the defect in the clearance given in the present case is that there are no safeguards and particularly air quality and water

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quality monitoring. The base data has completely abdicated it. There is either non-consideration of the air and water pollution issues or there is improper assessment of the same. Inviting our attention to the Pollution Control Board's clearances documents at pages 261 to 266 of the paper book, it is submitted by Shri Mukherjee that overall impact on agricultural operations, ground water requirement, its quality and the impact on plantation, particularly the cashew trees has not been considered at all. Further, if there is pick and choose policy adopted by the first respondent and waste is discharged in the lake which has polluted the same, then, all the more what the authorities were required to consider seriously is whether the existing unit at Amona has been the cause of water pollution and whether the water discharge from the same has percolated down to lake. In such circumstances, when air, water and overall impact on the ecology has not been assessed, then, this clearance cannot be accepted. Further the clearance does not take into account major issues concerning the impact of the expansion on the existing units. Further the impact by the existing unit coupled with new units proposed to be set up in future, were very vital and important issues and aspects and they have been ignored.

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Therefore, the submissions of Shri Mukherjee can be summarized thus :

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(a) There is violation of the policy so as to help the first respondent in setting up its industry and in this regard, he relied upon the file notings referred to above. He also relied upon the communications from the EDC and Goa Industrial Development Corporation, so also the Chief Engineer, Public Works Department. All these authorities have mechanically reported that the project complies with the relevant provisions of law. Even the No Objection Certificate from the Panchayat reads curiously that the first respondent has only to provide employment to locally unemployed, matured, literate youths, the proposals for development of the village should be assisted and to follow the terms and conditions of Goa Pollution Control Board.

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(b) He submits that the N.O.Cs. have been obtained well in advance and in anticipation of the clearances from the Cabinet.

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(c) It is stated by him that there is no evidence before the authorities that the first respondent has excellent track record in environmental protection.

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In these circumstances, if all the functionaries and authorities of the State surrender their powers and abdicate their function only with a view to favour respondent no.1, then, in the garb of defending the policy decision of the State, they cannot support their actions. He submits that the entire journey of the proposal of the first respondent has been such that under any circumstances M/s. Sesa Industries gets approval in the Cabinet meeting held on 30/03/2007. It is also pointed out by him that the approval of the Government of Goa is based on the terms and conditions as communicated in the N.O.C. from the Panchayat. This is not a case of mere co-incidence, but a deliberate act of granting approval by sacrificing interest of the public and particularly that of environment and ecology. A perusal of the conditions would demonstrate that there is no application of mind when such a huge project is sanctioned. Ultimately, according to Shri Mukherjee, industrialization and urbanization cannot be at the cost of public interest and ecology. He submits that if the proposal was nothing but a fresh permission, then, to justify it on the ground that it is expansion of the existing unit, goes to show the extent to which the first respondent has been favoured and assisted. The existing plant is outside Bicholim industrial area. The justification that Navelim

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forms a part of Amona and Amona forms a part of contiguous estate or industrial area is falsified by the fact that there are separate clearances sought from the authorities. Respondent no.1 wrote to Joint Director, Environment and Forest on 17/12/2008, but in that letter it does not state that its project is of expansion, but a fresh proposal. Mr. Mukherjee has invited our attention to pages No.93, 95 and 105 of the paper book, which are nothing but statements contained in the EIA, EMP reports prepared by the first respondent and that would show that the said plant is about 2.5 Kms. from the existing blast furnace and will be located at village Navelim, Taluka Bicholim, District North Goa. The plan shows that it is located in GIDC area and it is adjacent to the existing Pig Iron Plant premises. Such statements would go to show that these are not usual and formal conditions, but contained in a policy document of the first respondent outlining their own project. Such documents ought to have been perused carefully by the authorities. They should have studied them in depth and details. If false and misleading statements are made, then, least that is expected from the authorities is that they apply their minds and not put a mere stamp of approval on the project. This is not a routine matter and what the authorities have done is to straightway accept the statements

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made in the project reports of the first respondent although they are contradictory and confusing. It is this behalf that he invites our attention to the statements that are made in the affidavit of respondent no.5. Mr. Mukherjee also points out to us that the Bicholim Industrial Estate was not existing till 2002. He relies upon the official gazette of Government of Goa Extraordinary No.2, the Department of Industries and notification dated 10/02/2002. He submits that Bicholim Industrial Estate was set up only by this notification. Therefore, to urge that the existing plant falls within Bicholim Industrial Estate and Bicholim Taluka in general and, therefore, it is being expanded, is nothing but a forgery and fabrication.

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For the above reasons, Mr. Mukherjee would submit that even the Panchayat permission is vitiated, it is fraudulent and forged because it is dictated by Respondent no.1. He has also faulted the Goa Industrial Development Corporation for placing conflicting and contradictory views. On 02/07/2010, it has informed petitioner no.2 that no construction plan is approved by the Corporation for Sesa Industry for Pig Iron Plant. There is no licence/ NOC, which is issued for construction to Sesa Industries for Pig Iron

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Plant. If such is the tenor of their communications and clarifications, then, how it gives favourable comments with regard to the project, has not been explained by it to this Court and, therefore, Mr. Mukherjee submits that this Writ Petition deserves to be allowed as the entire action is not only grossly arbitrary, discriminatory, but malafide as well. The policy decision violates the mandate of the constitutional Articles enlisted above.

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In answer to these submissions of Shri Mukherjee, the learned Advocate General appearing for the State submits that if the pleadings are seen, they would demonstrate that the petitioners have not challenged the policy at all. The petitioners have not pleaded anywhere in the petition that the policy violates the constitutional mandate or any statutory provision. Therefore, the policy decision having not been challenged, the approval alone cannot be questioned. In other words, in the absence of challenge to the policy decision, the approval cannot be impugned and, therefore, the petition must be dismissed on this ground alone.

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He, then, submits that EIA Notification 2006 has

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not been challenged in this Petition. Therefore, he submits that in the absence of proper pleadings raising the challenge, the petitioners cannot succeed. They have made highly irresponsible and false statements on oath. Their pleadings are in the nature of guesswork. The entire petition is based on file notings and by picking and choosing remarks therefrom. This is not the manner in which public interest litigation can be initiated and pursued.

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Apart therefrom, Shri Kantak submitted that this is not the case where the State of Goa has gone out of its way to assist or favour the first respondent. If the earlier decision of the Cabinet is perused, it would be evident that the same proceeds on the basis that the Government of Goa had discouraged setting up of the multi-units due to shortage of power and suitable directions were issued in that behalf from time to time. The Cabinet in its meeting dated 21/08/1998 decided that 35 units which are in operation and 20 other units under implementation were given permanent registration subject to compliance of all formalities. However, in respect of 38 units if no action has been taken to set them up, their approvals/ registration may be cancelled due to non-availability of power. The Ferro Alloy

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units were of similar nature and were placed in the negative list for registration. Thereafter, the Cabinet meetings were held in July 2000 and thereafter in another Cabinet meeting held on 20/07/2000, the permission was reviewed and it was decided that the Ferro Alloy units and consequently, processing units of similar nature with power requirement upto 200 KVA may be considered for permanent registration, plots from GIDC and loans from EDC subject to the condition that the Goa State Pollution Control Board certifies that the units are non-polluting in nature. Therefore, the learned Advocate General submits that the earlier decision of the Cabinet taken in the year 1998 was modified to a certain extent. Subsequently, in the 41^st meeting of the High Powered Coordination Committee, the then Chief Minister instructed the Member Secretary, Goa State Pollution Control Board, who is also member of this Committee to study the sponge iron production industry and submit a report. The Member Secretary made study and submitted his report. The Member Secretary submitted that there is deficit of 6800 MT per month consumption of sponge iron within Goa and if new units are permitted, then, the same should be located near the South Central Railway Line in the mining belt with certain conditions.

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Thereafter, the Government reconsidered this whole issue in the light of the contents of this report and improved the prior decision. It reviewed its policy in respect of registration of steel moulding as well as Ferro Alloy units in the State. The sponge iron units on low sketch may be required for engineering units as it was observed that there was a shortage. Therefore, the demand of raw material for the existing units set up in the State of Goa was not being met because of this shortage. Therefore, in supercession of all earlier directives, it was proposed on 16/06/2003 in HPCC meeting itself that the registration/ consideration should be restricted to other units and applications save and except the melting units, casting units, Ferro Alloy units barring the applications, which have already been received in the Directorate of Industry, Trade and Commerce and pending for consideration. All the applications, therefore, for registration/ consideration of such units were either accepted or rejected within the period of three months. Yet, no expansion of existing unit was permitted.

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Therefore, it is not as if the State proceeded only with a view to favour the first respondent or such entities in

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particular. This is the case, where even in the year 2003 itself, a study was undertaken by an expert body. The constitution and composition of High Powered Coordination Committee cannot be ignored, according to learned Advocate General. It is not as if the Chief Minister is the decision maker. If the petitioners had carefully perused the file notings and, particularly the Notes for Cabinet, it would be evident that the Secretary incharge of Department of Industries had prepared the Notes for Cabinet. Mr. Kantak, learned Advocate General, therefore, relies upon the Notes for Cabinet dated 14/03/2007, a copy of which is at page no.625 of the paper book and submits that due deliberations, discussions took place within the Committee and the Cabinet and the decision was reached to review the earlier policy. That was in the light of new technology, which is available to control pollution. Therefore, careful study was made and it was decided that every application for expansion of existing capacity of the units i.e. melting units, casting units, Ferro Alloy units, sponge iron units will be considered on case to case basis. It is not that only investment in the State was a matter kept in the forefront, but in the overall interest of the State, the decision was taken. It is not that the decision was taken because of the application made by the first

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respondent and it is continuously pursued by it. However, it is pertinent to note that the application was made on 23/02/2004, which was rejected on 11/07/2005 and the Cabinet Note came good one and half years thereafter namely on 14/03/2007. Even prior to the Cabinet note the file notings would disclose that several officials and experts at all levels placed their remarks and observations for due consideration of the appropriate authority, the Cabinet and the Government. These Senior officials within HPCC and at the Government level, applied their minds and a conscious decision was taken to review the earlier policy. The decision may have been triggered by the application of the M/s. Sesa Industries, but in the ultimate analysis, it is not on their behest and at their instance, leave alone to favour them. In these circumstances, if the earlier policy is modified and it was decided to consider the applications of the nature made by the first respondent on case to case basis bearing in mind environmental concerns, then, there is no question of mandate of Articles 14 and 21 of the Constitution of India being violated. The whole petition is based on ignorance of the petitioners with regard to the working of the Government and functioning of the officers at all levels. If the policy decision has been changed or there is shift therein, it is not

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as if the Government has acted malifide. The affidavit filed in reply, has been extensively referred to by Shri Kantak in support of his contentions. He has emphasised that this affidavit has been filed by Director, Department of Industries, Government of Goa and he has stated on oath that there were observations on the application, which has been made by the first respondent on 16/05/2006. It was discussed at the 57^th meeting of HPCC and comments from all the relevant departments were obtained. The matter was examined and scrutinized minutely. Merely because the perception of the petitioners is not reflected or that the ultimate decision is not to their liking, does not mean that they can seek interference in policy matters in writ jurisdiction. The learned Advocate General has pointed out that the approval has been renewed as communicated on 30/07/2009 and even the renewal letter would show that the same is conditional upon environmental clearances from the Government of India. Therefore, the environmental issues have never been sacrificed as argued and contended. Mr. Advocate General vehemently submitted that the units fall within the notified industrial area and once the Cabinet decision refers to only expansion and setting up of new units, then, looked at either way, the proposal of the first respondent has been approved for bonafide reason and

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by keeping all the relevant factors in mind. This is not a case, where there is non-application of mind. On the other hand, the argument of Shri Mukherjee overlooks several relevant Statutes including GIDC Act, 1965 and Section 37A thereof. If one looks at this provision, there is no question of obtaining any NOC from the Panchayat. These are industrial areas and, therefore, the appropriate and competent authorities would be those enlisted in these relevant Statutes. For all these reasons, he submits that the petition be dismissed.

¶229

Shri R. M. Kadam, learned Senior Counsel appearing on behalf of the first respondent while reiterating the preliminary objections, submits that the project is worth Rupees 1104 Crores. There is absolutely no case of any malafides on the part of the first respondent or the sanction or approval being brought about because of collusion or connivance with any authority or officer in the Government or the State. This is the case of a pure policy decision being reviewed and based on such review, the proposal/ project of the first respondent being sanctioned. There is no constitutional provision, which is violated. No statutory provision has also been alleged to be violated. If the

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authorities, who have been empowered to take such decisions have acted within the parameters of the policy decisions, then, in the absence of such challenge, their decision cannot be set aside in judicial review. The wisdom of policy decision cannot be questioned in a Court of law. The law is well settled and unless arbitrariness or violation of the constitutional mandate is proved, the Court exercising writ jurisdiction cannot interfere with the orders and approvals of the nature challenged by the petitioners. Mr. Kadam has also submitted that there is no question of any fraud, forgery and fabrication in either the approval or the communications of the Panchayat. Moreover, the approval as such, does not refer to any NOC from the Panchayat. He relies upon the affidavit of the respondent in this behalf and submits that if the law is carefully perused, it would be evident that the local authority / planning authority is GIDC. In this behalf, he relies upon Section 37A of the GIDC Act. Once no NOC is required from the local panchayat and GIDC has granted its permission, then, the false allegation based on the contents of the letter dated 01/07/2010 cannot be accepted. That letter of GIDC refers to Pig Iron Unit that is existing since 1992. If on the own showing by the petitioners, the industrial area was notified later on and

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came within the purview of the jurisdiction of GIDC, then, for existing unit (Pig Iron Unit of respondent no.1) which is set up and functioning since 1992, obviously the GIDC will not have any record. In such circumstances and when all precautions and measures so as to preserve the environment and ecology have been taken, then, the petition cannot be allowed. Shri Kadam has taken us through the affidavits of the first respondent extensively and has submitted that it is petitioner nos.2's perception that the environment and ecology has been damaged. He is an ex-employee of respondent no.1. A dismissed employee is obviously going to make irresponsible and baseless allegations and that is out of animosity. No credence or value can be attached to the same. However, even otherwise the report of the first respondent which has been presented before seeking approval and even during the course of the same, would demonstrate their concern for ecology and environment. There is absolutely no discharge of water or waste in the lake. There is a complete mechanism and technology for recycling of the same. In this behalf, our attention is invited to pages 368 and 384 of the paper book. Shri Kadam submits that if the project is to be considered as a new one although styled as an expansion, yet, all the terms and conditions and

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requisite provisions of the EIA Notification 2006 are duly complied with. Therefore, the petition raising not a bonafide challenge, it deserves to be dismissed with heavy compensatory costs.

¶236

Mr. Nadkarni, learned Senior Counsel appearing for the Goa State Pollution Control Board and Mr. Ferreira, Assistant Solicitor General appearing for Central Environmental Authority, have stated that both of them are statutory functionaries and authorities and they have taken all steps and measures to ensure compliance with the environmental notification. Their actions are in tune with the requirement and in consonance with the legislative mandate and constitutional policy. Therefore, even with regard to environmental issues, the petitioners have not raised any challenge, which requires this Court to interfere in writ jurisdiction. For all these reasons, it is submitted that the petition be dismissed.

¶237

For properly appreciating these contentions, firstly, a reference will have to be made to the settled principles which are reiterated in a recent decision of the Hon'ble Supreme Court reported in (2010)6 SCC 303

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(Shimnit Utsch India Private Limited and another Vs. West Bengal Transport Infrastructure Development Corporation Limited and others.) The powers of this Court under Article 226 of the Constitution of India and particularly of judicial review cannot be utilised to interfere in pure policy matters unless the policy is demonstrated to be arbitrary, irrational and vitiated by bias and malice. These principles have been summarized by the Supreme Court in paragraph 52 of this decision thus :

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'We have no justifiable reason to take a view different from the High Court insofar as correctness of these reasons is concerned. The courts have repeatedly held that the government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice.'

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Therefore, we will have to see whether the petitioners are requesting this Court to interfere in pure policy matter without the exceptions carved out in the Supreme Court's decision being fulfilled and satisfied. If that is so, then, interference would not be permissible.

¶243

To decide this issue, what we have to note is that the first respondent Company had submitted a project for approval of the State Government. That application was made on 23/02/2004. On that application, the State Government informed the first respondent on 11/07/2005 that the request for expansion of existing capacity for manufacturing of Pig Iron 800 tons per day, cannot be considered since the State Government has taken a decision that no further application for registration should be accepted as melting units, casting units, Ferro Alloy units, sponge iron units and also no expansion of existing unit should be permitted, as communicated by the Under Secretary (Industries) by a letter dated 10/07/2003 and by letter dated 11/07/2005.

¶244

The said decision was based on the policy regarding registration of Ferro Alloy units in Goa. That

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policy, which guides the registration of steel melting units in the State of Goa, is stated to be quite different from other States. The Government of Goa discouraged setting up of such units due to shortage of power and suitable directions had been issued in this regard from time to time. Reference is made in the Note for Cabinet, a copy of which is at page 512 of paper book, to the Cabinet meeting held on 21/08/1998, wherein it was decided that 35 units, which are in already production and 20 other units, which are under implementation, may be given permanent registration subject to compliance of all formalities. However, in respect of 38 units, if no action has been taken to set up the units, their approvals / registration may be cancelled due to nonavailability of power. Ferro Alloy units of similar nature were placed in the negative list for registration. Even for capital investment subsidy for such units is concerned, a separate note was put up for consideration of Cabinet. Then, there is a reference to another Cabinet meeting held on 20/07/2000 wherein the Ferro Alloy units and consequently, present units of similar nature with power requirement upto 200 KVA may be considered for permanent registration, for allotment of plots from GIDC and loans from EDC subject to condition that the Goa State Pollution Control Board certifies that the

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units are of non-polluting nature. Thus, to certain extent the earlier instructions issued in this regard stood modified. Subsequently, there is reference to 41^st meeting of the High Powered Coordination Committee by which the Chief Minister instructed the Member Secretary of the State Pollution Control Board, who is also member of this Committee to study the sponge iron production industry and submit his report. This Secretary made a study and submitted report and stated that there is deficit of 6800 MT per month for consumption of sponge iron within Goa and that if new units are permitted, then, the same should be located near South Central Railway line in the mining belt etc. with certain conditions.

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The Cabinet Note states that the Government has reconsidered the whole issue in the light of the report of the Member Secretary and prior decision of the State and reviewed the policy in respect of the registration of steel melting units as well as Ferro Alloy units in the State. The sponge units on low scale may be required for existing units as it was observed that there is already a shortage of 6800 MT of sponge iron considering the demand of raw material by the existing units set up in the State of Goa itself. In view

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of the same and in supercession of all directives, it was proposed to have guidelines modifying the earlier decision.

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49. The guidelines are thus :

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“In view of the above, the following guidelines are proposed for consideration and approval of the Council of Ministers :

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No further application for registration/ consideration in HPCC meeting should be accepted/ considered as melting units, casting units, Ferro Alloy Units except the applications which have already been received in the D.I.T.C. and pending for consideration. All such applications will be cleared as accepted or rejected within a period of three months.

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In order to help financial institutions to liquidate their NPAs in steel units, the existing steel units/ foundry units financed by Economic Development Corporation, Maharashtra State Finance Corporation and Banks and which are closed down due to any reasons in case if such units have outstanding loans with these Institutions namely EDC, MSFC and Banks exceeding Rs.25,00 Lakhs, they may be considered for re-registration subject to fulfilling all parameters including power, NOC from Goa State Pollution Control Board, etc. provided the financial institutions makes such requests.

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Decision on such requests shall be taken by the Industries Department with approval of Industries Minister and Chief Minister.

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No expansion of existing units should be permitted. However, amalgamation to add up capacity may be allowed.

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The above note has been approved by the Industries Minister and also by Hon. Chief Minister.”

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To our mind, it is not as if the policies of such nature are static and fixed for all times to come. The policies were reconsidered, modified and reviewed from time to time, as communicated in this Cabinet Note. Since the first respondent's application dated 23/02/2004 fell within the purview of these guidelines and the Government policy, they were informed that no approval can be granted. A reading of the policy itself would reveal that the units of the nature specified in the Cabinet decision dated 16/06/2003 were not permitted to be set up or even the existing units were not permitted to be expanded because of shortage of power. The situation in Goa has been viewed differently in comparison to other States. It is not for us to guess as to how the power situation improved and, therefore, the earlier policies were reconsidered and reviewed. It is also open for the Government to modify and review its own policies depending

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upon the changed circumstances. Several factors go into policy making and decisions in that behalf. We are not experts in the field. It is not for us to probe as to whether the situation of power at the relevant time was such as would permit taking of such decisions. That would mean that we enter a province of policy making, which is totally forbidden in law. In judicial review, it is not for us to sit in judgment over the wisdom of policy makers and find out whether several factors were considered and options availed of before modifying the earlier policy decisions. That much flexibility and latitude has to be given to the policy makers.

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It is argued that from 23/02/2004 when the application was made by the first respondent and it was rejected on 11/07/2005, the matter was pursued vigorously by the first respondent and therefore, the shift in the policy could be seen. It is not possible to accept this contention because a complete reading of the Cabinet Note dated 16/06/2003 based on which the Cabinet decision was taken would show that the policy of 1998 was reviewed in 2000 and also the decision of 2000 was further reviewed from time to time till 2003. Therefore, the change or shift in the policy did not come about only because of the application of the first

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respondent. When policy of 1998 is changed in 2000 and policy of 2000 was reviewed and changed in 2003, this first respondent had not even applied for permission to expand their existing unit. Therefore, no inference can be drawn that an application for approval of the expansion of the existing unit made on 23/02/2004 by the first respondent having been rejected on 11/07/2005 by the Government, the matter took a turn and all acted only with a view to unduly favour the first respondent.

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The information that is obtained by the petitioners under Right to Information Act in the form of notes to Cabinet and Higher Officials would indicate that the decision dated 30/03/2007 was taken by the Cabinet after the High Powered Coordination Committee meeting held on 07/03/2007. Before this High Powered Coordination Committee, there were several notes put up from time to time. While it is true that the first respondent had, after rejection of their application, approached the Government, as stated by them in their affidavit-in-reply. It made the application for expansion to the High Powered Coordination Committee on 23/05/2006. There is much substance in the contentions of the respondents that the High Powered

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Coordination Committee consisted of the following :

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Sr. No.	Name of the Member
1)	Chief Minister
2)	Minister for Industries
3)	Chief Secretary
4)	Secretary (Industries)
5)	Chief Inspector of Factories & Boilers
6)	Chief Town Planner
7)	Managing Director, GIDC
8)	Member Secretary (I/c.) GSPCB
9)	General Manager, EDC Ltd.,
10)	Director/ Jt. Secry, Science, Technology & Environment
11)	Supdt. Engineer (M&F), PWT)
12)	Chief Electrical Engineer
13)	Director of Industries, Trade and Commerce

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Therefore, nothing much can be made of the statements in the affidavit-in-reply so also emerging from the record that aggrieved by the communication dated 11/07/2005 respondent no.1 approached and represented before the then Hon'ble Chief Minister, State of Goa, who was Chairman of High Powered Coordination Committee on 14/07/2005 and explained their activities. It was explained to him that the first respondent's unit does not come within the category of melting units, casting units, Ferro Alloy units, sponge iron units and, therefore, a fresh application, which is made, may be considered on merits. A communication was addressed on 15/07/2005 and the activities were once again explained. Thereafter, the Chief Secretary of the State of Goa visited the site and he was explained the production and manufacturing activities undertaken by the first respondent. Thereafter, a communication was addressed on 16/05/2006 to the Chairman of HPCC in the name of Chief Minister of Goa and the first respondent sought permission to proceed with their fresh detailed application, which came to be filed on 23/05/2006. Therefore, all throughout the first respondent was pursuing its case that its unit does not fall within the policy decision of 2003 and, therefore, the

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permission and approval be granted. That is how, they refer to the minutes of the 57^th meeting of HPCC dated 09/10/2006.

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If the notes that are put up before the 57^th meeting are perused carefully, it would be apparent that it was the case of the authorities that permission/ approval cannot be granted in view of the policy decision taken on 16/06/2003. The Company was in the meanwhile asked to obtain NOC from the Panchayat. In the Note for Cabinet that was circulated by the Industries Department, what has been stated is that in the High Powered Coordination Committee meeting held on 07/03/2007, the proposal of M/s. Sesa Goa Ltd. for expansion of existing capacity of their units for manufacturing of low ash metallurgical coke was considered and it was brought to the notice of the Committee that the earlier decision is that no such application can be granted. Further, after due deliberations, the Committee was of the view that since new technologies are now available to control pollution, it would be appropriate to consider such applications on case to case basis in order to attract investment in the State. The Committee was of the opinion that in view of the excellent track record of M/s. Sesa Goa

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Ltd., the proposal could be placed before the Cabinet for decision. Therefore, the proposal was put up that the High Powered Coordination Committee be authorised to consider this application for setting up of new still units including melting units, casting units, Ferro Alloy units, sponge iron units and expansion of existing units on case to case basis on merits. The second clause in the proposal was to approve the project of M/s. Sesa Goa Ltd.

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Petitioner no.2 has been informed about all this by the Government of Goa vide letter dated 15/07/2010. Each of the meetings of the Committee has been referred to in this communication, which is signed by the Director of Industries, Trade and Commerce. It may be true that the proposal of the first respondent was instrumental in the shift or change from earlier policy. However, from that alone, one cannot conclude that the first respondent was favoured and given such treatment as would fall foul of the mandate of Articles 14 and 21 of the Constitution of India. The file notings would show that the first respondent was directed to place several details including a complete project report and a chart of the manufacturing process and such other and relevant documents including their annual reports and a list

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of directors. This was going on from 2004. In 2004, when the application was made that application was duly considered, but in view of the policy of 2003, the communication dated 11/07/2005 was issued. Thereafter, the resubmitted application of the first respondent was placed for consideration of the concerned departments. All that the departments' officers stated on this proposal is whether the same can be circulated to HPCC members after the comments from all the departments are duly received. Therefore, the resubmitted proposal went through all the concerned departments and the file notings would indicate that the comments on the proposal have not been accepted at their face value. They have been scrutinized by forwarding the same for comments of expert bodies and the file notings at page No.37A would indicate this aspect.

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In fact, the officers have been bold enough to endorse in the files that the Goa State Pollution Control Board had by their letter dated 27/06/2006 stated that the activity of manufacturing Pig Iron through blast furnace route involves melting. This activity cannot be considered in view of the policy decision taken by the Government in the Cabinet meeting held on 16/06/2003. Clarification was also

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called from Small Industries Service Institute (SISI). When these comments were received the recommendation was that these comments may be placed before the High Powered Coordination Committee before it is rejected. (See page 40. of the paper book). Thereafter, the Chief Town Planner to whom the file was referred in addition to the Industrial Development Corporation, Pollution Control Board etc., forwarded its comments. The comments even from Chief Inspector Factories and Boilers and Electricity Departments were called for. It is with all this material, that the matter was placed before the High Powered Coordination Committee and the High Powered Coordination Committee took the subject decision. The High Powered Coordination Committee before taking a decision, directed inspection and submission of a report to it. The High Powered Coordination Committee thus, had before it all the comments on the proposal of the first respondent and, therefore, it took an independent decision as reflected in the minutes of 58^th meeting held on 07/03/2007. On the proposal of Sesa Goa Ltd. and Sesa Industries, this is what the High Powered Coordination Committee opined :

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“Additional Item No. :-

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M/S. SESA GOA LIMITED :- The deferred proposal of Sesa Goa Ltd., for expansion of the

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existing capacity of its unit for manufacture of Low Ash Metallurgical Coke at the existing location at Survey No.205 and 207, Navelim Village in Bicholim Taluka was taken up for discussion. The Committee examined the Cabinet decision dated 16/06/2003 conveyed by Industries Department vide letter No.3/9/98IND(30)/Part dated 10-07-2003 of the Government decision that no further application for registration/ consideration in HPCC meeting should be accepted/ considered of melting units, casting units, Ferro Alloy unit, Sponge iron units and also no expansion of the existing units should be permitted. After discussion, the committee was of the opinion that in view of the excellent track record of Sesa Goa Limited in the field of environmental pollution, there should be a provision for case to case examination instead of a blanket ban on all steel units. This issue may be brought before the Cabinet for a revision of the earlier decision.

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Additional Item No.2 :-

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M/S. SESA INDUSTRIES LIMITED :- The

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deferred proposal of Sesa Industries Limited, for expansion of the existing capacity of its unit for manufacture of Pig iron through blast furnace route at the existing location at Survey No.177, Part 120, Navelim Village in Bicholim Taluka was taken up for discussion. The Committee examined the Cabinet decision dated 16-06-2003

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conveyed by Industries Department vide letter No.3/9/98-IND(30)/ Part dated 10-07-2003 of the Government decision that no further application for registration/ consideration in HPCC meeting should be accepted/ considered of melting units, casting units, Ferro Alloy unit, Sponge iron units and also no expansion of the existing units should be permitted. After discussion, the Committee was of the opinion that in view of the excellent track record of Sesa Industries Limited in the field of environmental pollution, there should be a provision for case to case examination instead of a blanket ban on all steel units. This issue may be brought before the Cabinet for a revision of the earlier decision.”

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We do not see how so many persons and officers constituting such a High Powered Coordination Committee would be completely swayed by the proposal of the first respondent and its presence in Goa. One cannot presume that all the departments and their officers senior as well as junior worked and functioned in such a manner that the proposal of the first respondent is accepted and approved. They did not act at the behest of the first respondent. They may have been proceeded to consider a shift in the policy because of the continuous efforts of the first respondent. However, by that itself, one cannot conclude that the

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approval of the proposal has been granted with a view to somehow or other assist the first respondent in expanding its existing unit. We do not find that the decision collectively taken in this case is biased and arbitrary. There is an allegation that the approval given by the Cabinet is fraudulent and fabricated.

¶295

At more places than one and even during the course of argument, the words 'fraud', 'fabrication' and 'forgery' are freely used. Even going by the ordinary meaning of these terms what emerges is that “a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegation or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury,” is said to be fraud. In Black's Law Dictionary, 6^th Edition, it is stated that 'bad faith and fraud are synonyms and also synonyms of dishonest infidelity, faithlessness and unfairness, etc. which is foundation of act.' “It is generic term embracing of multifarious means which human ingenuity can devise and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth and includes all, surprise, trick,

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cunning, dissembling and any unfair way by which the another is cheated.” All these elements should be present for one to conclude that there is a fraud. In this case fraud as also fabrication is alleged. The pleading in the petition is that the project is approved for ulterior purpose. The reasoning given while approving the project is vague. It is not correct as to how the decision was arrived at and there was no evidence of discussion or real reasons. Therefore, the Cabinet approval is arbitrary and without proper reasons in breach of Article 14 and consequently, indicative of malafides and misfeasance in public office. The Cabinet approval is void. These are the pleadings/ grounds on which the relief is sought. However, then, the argument stretches to fabrication and forgery as noted above. The word 'fabrication' means “to invent or to devise falsely”. “Fabricated fact” means a fact existing only in statement without any foundation of truth, whereas 'forgery' is totally distinct. 'Forgery' means the false making or material altering of a document with intent to defraud.

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It is essential in this case for us to set out the above distinction even in the ordinary meaning of these words and their meaning in common parlance because what

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we find is in memos of applications and writ petitions styled as public interest litigation, even if the draft is by an Advocate, such terms are loosely inserted and used throughout the pleadings. This is because of common perception, which is that all such decisions and particularly of approving huge projects of multinational corporations and heavy industries are vitiated by fraud, malice and bias in their favour. Such sweeping remarks and allegations are often not substantiated by cogent and satisfactory material. Then, they do more damage to public cause and public interest. The common man does not know the functioning of a Court of law. The common man because of his ignorance of the legal procedure as also substantive laws, feels that despite serious allegations the Courts, in the garb of the decisions being policy matters, do not interfere. The Court proceeds on the basis that these are purely executive functions and within the purview of the executive and the Government. A perception has developed that in such matters the Courts are reluctant to interfere even if serious allegations are made. It is often forgotten that making of such allegations brings in the additional responsibility of substantiating and proving them which, if not impossible, but difficult at times. Therefore, it is now necessary to sound a

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note of caution because in public interest litigation, which is intended to achieve a salutary purpose, the applicants or petitioners feel that their responsibility ends with making allegations. Thereafter, it is for the Court of law to probe and investigate them. They forget that a Court of law can probe and investigate them provided basic material is furnished in support of such allegations. When this material is lacking or is so inadequate that even a prima facie view cannot be taken, then, the exercise turns into a motivated and publicity action. Pendency of such so called public interest litigation is then utilized to present a distorted picture before public through the media and other means. When such litigation ends in failure, then, all the more the blame is put at the door of the Courts without realizing that a public interest litigant has to fulfill his constitutional obligation and duty as well. The parties approaching a Court of law with a cause in public interest ought to realise and should be aware of the fact that their attitude and conduct should be such that public faith and trust in the judicial system is not eroded. The petitioners'/ applicants' perception and view of a cause is not conclusive. There are always multiple views and opinions in a democracy. All the more, in a Court of law, there are two sides. Therefore, the discipline

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and sanctity of Court proceedings has to be maintained by all including the petitioners in a PIL. Allegations of bad faith and malice can be easily levelled but in a Court of law proof has to be furnished. In addition, in a PIL, while challenging the acts and decisions of Public Bodies and statutory functionaries the petitioners should also place before the Court such materials which would enable it to not only correct such acts and decisions, but when required suggest solutions and remedies so as to subserve public interest and public good. In some cases, by striking down the decisions alone, public purpose may not be achieved. In a given case, the Court may have to suggest and direct remedial measures.

¶305

The fundamental duties of the citizens as enshrined in Article 51A include respect and regard for institutions created by the Constitution. The Court is one such institution and putting unnecessary pressure on its functioning would only damage the cause of the citizens. The citizens' responsibility does not end after filing PILs. They must endeavour and make genuine and sincere efforts to find and indicate answers to the issues raised and when the task is as difficult as striking a balance between expectations of public from economic development and preservation of environment and ecology.

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We are sorry to state that the present petition falls short of the required standards. We are also unable to agree with the learned Counsel appearing for the petitioners that fraud and forgery as well as fabrication is writ large in the proposal of the first respondent and the approval. It is his statement that the proposal contains misleading and false statements and that the distance of 2.5 kms. between two villages namely Amona and Navelim would show that by no stretch of imagination this can be said to be an expansion of the existing unit, but establishment of a new unit. In this behalf, respondent no.1 has pointed out that it owns huge tracts of land. It is not as if this land between two villages is incapable of being used for setting up an industry. It is pointed out on oath that its Pig Iron Unit was initially established in the year 1992. The existing plant, which is stated to be Amona-Navelim plant, Bicholim, Goa is in the same industrial complex, which constitutes a composite property. The existing unit is located very close to AmonaNavelim villages of Bicholim Taluka. Merely because the expanded unit extends to Navelim village does not mean that it can be styled as new unit. The entire industrial area allotted by GIDC admeasures over 12 lakhs square metres or

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thereabout. The units are adjacent to each other and the distance alone is not relevant or guiding factor. In the same industrial complex, respondent no.1 has the existing Pig Iron Plant, two met coke plants and by the side of which the expansion of Pig Iron Plant is coming up. It is not correct to state that one plant is existing at one village and another one is coming up in another village. The two units are in the same complex and are stated to be a contiguous plant with the object of bringing it closer to the existing met coke plant of the first respondent and the existing Pig Iron Plant. The expansion of the Pig Iron Plant is on the side of the met coke plant. The metallurgical coke produced in the metcoke plant is main raw material for Pig Iron Plant. The planning of industries is done with the help of industrial designers, who are experts in this sphere and who have taken into consideration the techno-commercial aspects of the project. The heat/ gases of the Pig Iron Plant are not let off for burning or smoked out in the air but the heat and the gases are used as fuel in the waste heat recovery based power plant for generation of clean electrical energy which is also strategically located in the same complex. The project is designed and located in such a way that heat gases, which are supplied to Power Plant are used efficiently. Now we

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cannot ignore such strategies and the survey numbers of two villages, which are placed before us are not enough to arrive at a conclusion that the first respondent made false and misleading statements. The map is also referred to in the project/ proposal / report of the first respondent. The distance between the two villages was present to their mind but what they have indicated is that if the entire area is contiguous and known as industrial area and falls within the jurisdiction and authority of Goa Industrial Development Corporation, then, it is not as if a false representation was made to seek approval for putting up of a new unit in the garb of expansion of existing unit.

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That apart, the application/ proposal of first respondent has been considered on the same lines as a new proposal by the authorities. They have applied the same standards and yardstick for scrutiny as would be applied by them for a new proposal or requisition to set up a new unit. Therefore, nothing much turns on this aspect and the petitioners were required to demonstrate that by making such statements and by misleading information, the first respondent got the approval and their misrepresentation was overlooked by the authorities when they granted approval.

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Since the allegations are of fraud, forgery and fabrication, that would mean that the authorities are also party to the alleged fraud perpetrated by the first respondent. That is not demonstrated because the Cabinet note, policy decisions and further remarks and the notings in the files all are part of the proceedings. These would show that the application of standards and criteria for scrutiny of both proposals is identical. Earlier, the policy was to discourage both expansion of existing unit as also setting up of new units. Now the policy envisages scrutiny of such proposals on case to case basis and merits. This contention, therefore, must obviously fail.

¶315

An attempt made to point out that the environmental clearance is vitiated as requisite parameters have been overlooked. The clearance has been obtained after examining all aspects such as air, water, pollution and the impact of expansion of existing units or setting up of new units not only on the industries functioning but which are proposed to be set up in future. Since this has been the sweep of the submissions of the Counsel and the matters pertain to ecology and environment, we have carefully scrutinized the entire material and we are satisfied that even

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this contention has no merit.

¶318

The affidavit that is filed by Dr. Susarla and passages from which have been referred to in extenso and while noting down the submissions of the State Government and Union of India, would indicate that the study which is termed as baseline study/ baseline data generation included the present level of impact on the environment namely air, water, noise, soil, socio-economic inclusive of the cumulative impact on the adjacent existing unit and additional impact due to proposed project. Now, this statement is sought to be substantiated by Chapter 3A of the environment impact assessment report- baseline environment status. In this behalf, in paragraphs 6 to 8 of the affidavit what has been indicated is that with specific reference to the project of the first respondent, the impact by taking into account the above mentioned factors, all relevant matters have been duly considered. The petitioners filed affidavits to indicate some flaws and contended that the respondents got carried away by the alleged excellent track record in environment of the first respondent.

¶319

However, what they have pointed out is failure to

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consider future projects vitiates the study. In this regard, what the learned Counsel would point out to us is the contents of the form/ application made by the first respondent. He would point out the alleged flaws from the documents forwarded by the first respondent and urges that it is not for the first respondent alone to make such study and forward the report. We are satisfied that the authorities have not only considered the impact on the existing and projected units but the statements made in the report of the first respondent. What the petitioners then argued is that the study on the impact and the assessment thereof by the environmental authorities is erroneous. We do not possess either the requisite skill or expertise or their experience. Once again the petitioners are required to place entire details and the requisite data including providing the nature of industries in the vicinity, their existing capacity, potential of their expansion and new industries likely to come up. The petitioners have not even given the names of the existing industries leave alone the details. The petition is based on insufficient and inadequate data. We cannot interfere with the view of authorities in such circumstances or make any comment merely because the petitioners state that there has been a shift in the standards. We do not feel that the relevant

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facts have not been considered while granting environmental clearance for Navelim Pig Iron Plant. The allegation that the relevant evidence in relation to baseline data is not taken into consideration is also nothing but a perception or view of the petitioners. Based on contents of some communications and letters, what is stated is that the plantation of trees and houses in the vicinity would be damaged and they are facing a lot of problems because of dust pollution. The petitioners have failed to point out that this aspect has completely been overlooked or ignored by the authorities. Their case is based on the Pollution Control Board's inspection, where it has observed that its dust particles are settled on the trees, leaves and houses in the vicinity of Sesa Pig Iron Plant. There are also some reports regarding agricultural lands. That is something, which is subsequent to the approval granted in 2007. We are sure that all such studies by the authorities like the Pollution Control Board or the Ministry of Environment and Forest, Government of India are not final and conclusive. The impact on environment and ecology of such project has to be studied throughout. If the observations and studies conducted from time to time indicate that there is adverse impact on ecology and environment, then, nothing prevents the authorities from

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taking such action as is permissible in law including imposing additional conditions by modifying their approvals and permissions granted earlier. We have no doubt in our mind that the statements made in the affidavits of the Board and in rejoinder while assailing the environmental clearances, would be taken into consideration even now by the authorities and if they find that the consent granted earlier needs to be revoked or withdrawn, nothing prevents them from doing so by considering all the materials, including the statements made in the affidavits and the contents of the documents filed by the petitioners. As we have already held that because of the perceptions and views of the petitioners and their disagreement with the opinion and conclusion of the authorities incharge of granting environmental clearances, the same cannot be quashed but at the same time, we deem it appropriate to clarify that our conclusion will not in any manner prevent the petitioners from raising such issues and pressing their concerns and grievances about any adverse impact on ecology and environment, and for the authorities to consider them accordingly. All that we hold is that on the basis of available material, we cannot conclude that the environmental clearance is flawed. The impact has been duly considered and the studies based on

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which the approvals were granted in 2007 and renewed in 2009, would make it abundantly clear that they are subject to terms and conditions including the protection of environment. Therefore, the authorities have taken due care and caution while approving the project that ecology and environment is not disturbed and there is no adverse impact thereon. On the basis of the material that is placed before us including some communication based on inspection of samples of water, we cannot conclude that the assessment made or the study conducted is violative of the provisions of Environment (Protection) Act and Notification issued in the year 2006. It must be also held that the criteria for assessment or the EIA Notification of 2006 is not challenged. Hence, that is the accepted basis.

¶328

Since these were the only points argued and highlighted before us and since the contentions on two major issues fail, we are of the opinion that it is not necessary to scrutinize and go into the other contentions regarding NOC of the Village Panchayat. The NOC of Village Panchayat is alleged to be fraudulent and fabricated. That is a plea which gives rise to disputed questions of fact. The petitioners insist that clearance and NOC have been obtained fraudulently,

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whereas the first respondent maintains that no such NOC or consent is necessary as the issue falls within the jurisdiction of GIDC. Reliance is placed on Section 37A of GIDC Act. We are of the view that it is for the Village Panchayat to consider this aspect and if its NOC was necessary and not obtained, then, it can initiate proper action against the first respondent in accordance with law. Equally, if the NOC was granted, but it is proved to be fabricated and forged, this order does not prevent the Village Panchayat from taking appropriate action in accordance with law. We leave the matter at this and say nothing more.

¶331

Our attention was invited to an order of this Court dated 24^th January, 2012 in Writ Petition No. 85 of 2006 to urge that this matter is also similar. This was placed on an affidavit filed after the hearing concluded and the matter was closed for orders. All the respondents disputed this fact. How an order recording the statement of the Advocate General in a case concerning Sponge Iron unit, will apply here is not explained in any details. That was an order and not a judgment rendered on full hearing. Hence, we cannot accept this contention of the petitioners. Besides this, we called for the papers in that PIL Writ Petition and find

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that the controversy and relief is distinct and concerns prohibition of Sponge Iron Unit within catchment area and/ or within 1 Km of any river or stream classed as A or C in Goa.

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As a result of the above discussion and subject to the above observations and conclusion, the writ petition fails. It is accordingly dismissed. Rule is discharged, but without any order as to costs.

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S. C. DHARMADHIKARI, J.

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U. V. BAKRE, J.

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SMA

Ramchandra Vaman Naik and 2 Ors., v. M/S. Sesa Industries Ltd. and 5 Ors.

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Ramchandra Vaman Naik and 2 Ors., v. M/S. Sesa Industries Ltd. and 5 Ors.

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