Alleged obstruction of 14 rivers by port and SEZ development in Mundra prompted demands to cancel land allotments and clearances and restore river flows. The Court found no actionable obstruction, refused an independent commission and dismissed the lead petition. Two connected petitions were disposed of as not pressed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/WPPIL/122/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 122 of 2013 With CIVIL APPLICATION NO. 3690 of 2014 In WRIT PETITION (PIL) NO. 122 of 2013 With WRIT PETITION (PIL) NO. 204 of 2012 With WRIT PETITION (PIL) NO. 54 of 2013 With CIVIL APPLICATION NO. 1593 of 2014 In WRIT PETITION (PIL) NO. 122 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI
and HONOURABLE MR.JUSTICE R.P.DHOLARIA
================================================================
Page 1 of 35
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================================================================
AASARIYA LAKHA GILVA & 1....Applicant(s)
Versus
UNION OF INDIA & 6....Opponent(s)
================================================================
Appearance:
MR SHALIN MEHTA, SR.ADVOCATE assisted by MR.ISHAN MIHIR PATEL, ADVOCATE for the Applicant(s) No. 1 – 2
MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL for the Opponent(s) Nos. 1 - 2
MR VANDAN BAXI, AGP for the Opponent(s) No. 3 , 5
MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 4 MR BIREN A VAISHNAV, ADVOCATE for the Opponent(s) No. 6 NOTICE UNSERVED for the Opponent(s) No. 2
MR MIHIR THAKORE, SR ADVOCATE assisted by MR SANDIP SINGHI for SINGHI & CO, ADVOCATE for the Opponent(s) No. 7
================================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 21/01/2015
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1.The present petitions in the nature of
Public Interest Litigation are filed by the
petitioners. The petitioners in Writ Petition
(PIL) No.54 of 2013 and Writ Petition (PIL)
No.204 of 2012 have, inter alia, primarily
challenged the provisions of the National Green
Tribunal Act including Sections 14, 18, 19 and 22
thereof as unconstitutional and have also
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C/WPPIL/122/2013 CAV JUDGMENT
challenged the notification establishing National
Green Tribunal at Pune. These prayers are akin to
prayer “A” and “B” of the captioned Writ Petition
No.122 of 2013 which are not pressed by Mr.Shalin
Mehta, learned Senior Counsel for the
petitioners. Therefore, we dispose of Writ
Petition (PIL) No.54 of 2013 and Writ Petition
(PIL) No.204 of 2012 as not pressed and treat
Writ Petition (PIL) No.122 of 2013 as the lead
petition. Writ Petition (PIL) No.122 of 2013 is
filed by the petitioners praying for the
following reliefs.
“(A) grant interim relief by restraining
the respondents from diverting/blocking
flow of rivers and from constructing on
river-beds;
(B) quash and set aside the provisions
of the National Green Tribunal Act,
including under Sections 14, 18, 19 and
22;anddeclarethemtobe
unconstitutional;AND/ORdirect
establishment of a Green Tribunal in the
State of Gujarat for the residents of
Gujarat;
(C) issue a writ of certiorari or any
other order to quash the respondent-
Collector’s orders allotting and giving
away the river-lands to the respondents;
(D) issue a writ of certiorari or any
other order to quash and clearance,
including environmental clearance, given
by the respondent authorities or deemed
to have been given without considering
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the fact of bunding and obstruction of
flow of rivers;
(E) issue a writ of mandamus to the
respondent State of Gujarat to take over
the areas-in-question and to restore it
to its original natural conditions by
removing encroachments and obstructions
that are blocking/obstructing the flow
of rivers;
(F)and pass any other writ, order or
direction or grant any other relief as
may be deemed necessary to render
justice to the concerned persons.”
2.The facts giving rise to the present
writ petitions are that Mundra is a coastal
taluka in District Kutch which lies on the north
shores of the Gulf of Kutch about 50 kilometers
south of Anjar. Mundra belt is ecologically
extremely fragile. This region supports lives and
livelihoods of fishing, pastoral and farming
communities and their salt panning activity. The
main source of income for the local people is
agriculture, horticulture (Kharek and Chikoo),
farming and wage labour. It is the case of the
petitioners that the rainfall received in this
area is erratic and irregular and, therefore,
moisture index is low. Majority of land in this
district is degraded due to inherent salinity and
ingress of salt from the desert. The soil is very
permeable and porous and agricultural production
of this land is sought to be significantly
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enriched with the availability of timely
irrigation by the respondent government by
spending huge money behind Integrated Watershed
Management Programs. It is further case of the
petitioners that many rain-fed rivers originating
from different talukas in Kutch District flow in
the North South direction through many villages
and ultimately terminate into the Gulf of Kutch
flowing through Mundra Taluka. All of these
rivers (water-bodies) were required to be
notified in the Gazette by the respondent State
of Gujarat as per the direction laid down in
Shailesh R.Shah vs. State of Gujarat reported at
2002(3) GLR 447.
3.It is the case of the petitioners that
the cause of action for filing this petition is
the destruction, bunding, blocking and diversion
of more than 14 of these rivers viz., (1) Kundaal
nadi, (2) Shiraacha chhelo, (3) Dhaaneshwari
nadi, (4) Bochaavalo chhelo, (5) Navinal chhelo,
(6) Naagmati river, (7) Kapuriyaa nadi, (8)
Dhrabwaali nadi, (9) Raashaapir chhelo, (10)
Daahyavaalo chhelo, (11) Kevli nadi, (12) Bhukhi
nadi, (13) Luni nadi and (14) Lunivaalo chhelo
and the calamitous consequences being faced by
the people of Kutch, including flooding and loss
of livelihood due to loss of agricultural income.
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4.It is also the case of the petitioners
that few of the environmental illegalities were
brought to the notice of the respondent –
Ministry of Environment and Forest and,
therefore, by an “Office Memorandum” dated
14.9.2012, the said respondent has constituted a
Committee for Inspection of the illegalities
committed by the respondent. Accordingly, the
Committee’s inspection is complete and it has
given a report containing findings against
respondent No.7. In its report, the Committee has
stated that it is not possible to assess
allegations of damage to creek systems which have
taken place over the past 6 – 7 years during the
period of construction of ports, power-plant and
its ancillary facilities. The damage currently
being caused to the rivers does not come within
the purview of the committee as it has become
functus officio. It is also the case of the
petitioners that the committee had mere
recommendatory powers and, therefore, it is a
toothless committee and even its feeble
recommendations are not being acted upon and in
the meanwhile, respondent No.7 is continuing with
its illegalities by turning a blind eye towards
law. Hence, the petitioners have approached this
Court by filing the present petition in the
nature of Public Interest Litigation.
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5.Vide order dated 12.6.2013, this Court
issued the notice to the respondents making it
returnable on 26.6.2013. Pursuant thereto,
preliminary affidavit-in-reply is filed by one
Jatin Jalundhwala on behalf of respondent No.7
and rejoinder affidavit and further affidavits
are also filed by the petitioners. Thereafter,
supplementary affidavit-in-reply is also filed by
respondent No.7. Further affidavits-in-reply are
also filed by the respondent authorities. In the
meanwhile, the petitioners have preferred Civil
Application (For Interim Relief) No.3690 of 2014
for granting ad-interim relief/directions to the
effect that the respondent No.7 shall maintain
status quo qua the lands described / identified
with the mark ‘X’ in the map (at Annexure ‘A2’ so
as to not create any obstruction whatsoever in
the natural course of the 8 rivers mentioned in
the application, amongst other prayers.
6.We have heard Mr.Shalin Mehta, learned
senior counsel assisted by Mr.Ishan Mihir Patel
for the petitioners, Mr.Devang Vyas, learned
Assistant Solicitor General for respondent Nos.1
and 2, Mr.Vandan Baxi, learned AGP for respondent
Nos.3 and 5, Mr.P.S.Champaneri, learned counsel
for respondent No.4, Mr.Biren Vaishnav, learned
counsel for respondent No.6, Mr.Mihir Thakore,
learned senior counsel assisted by Mr.Sandip
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C/WPPIL/122/2013 CAV JUDGMENT
Singhi for respondent No.7.
7.Heard both parties at length. The
learned counsels from both the parties took us to
various maps, revenue records, large number of
photographs, reports and other records germane to
these matters. Since the questions raised in
these writ petitions fundamentally relates to
alleged blocking of 14 rivers in Mundra Taluka
region of Kutch District by M/s.Adani Port and
SEZ Ltd., and in the backdrop of UN Climate talks
ending in Lima with the setting of deadlines for
the world to come up with plans to curb emissions
and adapt to climate change, we thought it to be
deemed fit and proper to keep the judgment
reserved vide order dated 9.12.2014.
8.On going through the records, it is
noticed that the petitioners have also filed a
copy of report of the Committee constituted by
the Ministry of Environment & Forests, Government
of India, New Delhi to look into the complaints
regarding severe impact upon environment safety
and integrity committed by M/s.Adani Port and SEZ
Ltd. It is further noticed that upon receiving
various complaints regarding alleged severe
impact upon environmental safety and integrity in
Mundra Port and SEZ Limited in Mundra – Kutch
committed by M/s.Adani Port and SEZ Ltd., and in
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view of the Writ Petition in the nature of Public
Interest Litigation bearing No.W.P. (PIL) No.12
of 2011 filed in this Court alleging violation of
Environmental Clearance by M/s.Adani Port and SEZ
Ltd., the Ministry of Environment & Forests,
Government of India, vide Office Memorandum dated
14/9/2012 constituted a Committee for inspection
of M/s.Adani Port and SEZ Ltd., Mundra to look
into the complaints regarding severe impact upon
environment safety and integrity committed by
M/s.Adani Port and SEZ Ltd. The said committee
consisted of following members:-
1. Ms.Sunita Narain, Chairperson
2. Shri Anthony Gnanamuthu, Member
3. Prof. R.Ramesh, Member
4. Dr.A.Mehrotra, Member
5. Shri Lalit Kapur, Member.
8.1The broad terms of reference of the
Committee for inspection of M/s.Adani Port and
SEZ Ltd., are to examine:-
(a) the allegations regarding bunding/diversion/ blocking of creeks and reclamation etc. and thereby distortion of original HTL.(b) the HTL submitted by the Proponent and HTL of approved Coastal Zone Management Plan.(c) whether construction of Mundra port, roads, railway was taken up prior to grant ofPage 9 of 35
C/WPPIL/122/2013 CAV JUDGMENT
Forest/ Environment Clearance.
(d) the development of port with respect to the approved components.(e) compliance of the conditions of the Environmental and CRZ clearance granted for the port development.(f) the destruction of mangroves and levelling of sand dunes.(g) the development of Power Plant with respect to the approved components.(h) compliance to the conditions of the Environmental clearance granted for the Power Plant.(i) the likely impacts on agriculture due to ingress of salinity due to creation of huge water body of sea water for Adani Power Plant at Mundra Taluka.(j) the issues related to handling of fly ash by Adani Power Limited and particularly with reference to the Notification on utilisation of fly ash.(k) the issues related to earthquake/Tsunami/ other natural calamities and soil liquefaction which may be impacted adversely by the project.8.2The said Committee visited the site and
submitted its report to the Government of India
on 18/4/2013. On going through the report, it is
noticed that the Committee has observed at page
12 of their report that in all conditions for
clearance it has been made clear that no creeks
are to be blocked during the construction and
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C/WPPIL/122/2013 CAV JUDGMENT
operation of the project. It has also been
repeatedly conveyed that the natural drainage of
the area should not be affected due to the
project and no filling/reclamation of creeks is
allowed. Lastly, the said Committee has come to
the conclusion that the Adani Waterfront and
Power Plant Project, which has been granted
clearance in different phases beginning the year-
1995 has led to massive ecological changes with
adverse impacts. Amongst the several reformatory
measures cited, the Committee has recommended
following measures for project clearance
conditions and post clearance monitoring:
1.The current regulatory system is not able to handle the complexity and size of projects of this nature. There is an urgent need to strengthen the monitoring abilities and to bring in public oversight.2.The monitoring and auditing of such a large project is only possible, if the clearance conditions are specific and detailed, georeferenced and there is a landsat imagery analysis to benchmark the project area, preconstruction. Without these benchmarks, it is not possible, to ascertain the extent and scale of the violations committed during construction and operation phase.Page 11 of 35
C/WPPIL/122/2013 CAV JUDGMENT
3.More, importantly, a system should be
developed so that all monitoring data is
widely accessible by local communities to use
and comprehend in terms of impacts.
Lastly, the Committee has recommended
that there is a need to create a monitoring
system to ensure that corrective action suggested
by this report is taken within a time-bound
manner.
9.A preliminary affidavit-in-reply was
filed by Respondent No.7 on 14.8.2013 stating
that they initiated first port activity in the
year 1998 and subsequently in the year 2005, the
Government of Gujarat allotted land to
respondent No.7 by separate allotment orders in
respect of its Special Economic Zone. Thus, in
spite of such knowledge, the captioned writ
petition is filed after more than 7 years and
therefore this writ petition suffers from delay
and laches. The report dated 18.4.2013 of the
Committee constituted by the Ministry of
Environment & Forests, Government of India, is
not germane to the subject matter of the present
writ petitions. Neither the terms of reference
nor the said report mentions alleged blockage or
obstruction of rivers by respondent No.7. The
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petitioners have made unsubstantiated allegations
that colossal damage was being done to the
environment while the aforesaid committee was
taking time to inspect into the matter, only to
create a facade of dispute and to prejudice this
Court against respondent No.7 and has denied that
respondent No.7 has caused destruction or bunding
or diversion or obstruction of any rivers and has
carried out its activities on the land allotted
to it, as demarcated in the maps of the revenue
department, and as per terms and conditions laid
down in the respective allotment orders.
10.A affidavit-in-reply was also filed by
Mr.Narendra Shah, Under Secretary (Environment),
Forests and Environment Department, Government of
Gujarat on 31.1.2014 stating that the Ministry of
Environment and Forests (MOEF), Government of
India has granted Environmental Clearance for the
power plant on 13.8.2007 for Phase-I and Coastal
Regulatory Zone (CRZ) clearance for the purpose
of intake and disposal facilities for the Phase-I
wasgrantedon20.9.2008.Similarly,
Environmental Clearance for Phase-II was granted
on 21.10.2008. Environmental Clearance for water
front development was granted on 12.1.2009 which
came to be amended on 19.1.2009. Thereafter, the
Ministry of Environment and Forests (MOEF),
Government of India has also issued Environmental
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Clearance for Phase-III on 20.5.2010. In view of
the above position and since the Ministry of
Environment and Forests (MOEF), Government of
India has constituted a committee for the
inspection of M/s. Adani Port and SEZ Limited,
Mundra and the fact that the said committee has
submitted its report to the Ministry of
Environment and Forests (MOEF), Government of
India, it is for the said Ministry to take a
decision in view of such report and once the said
Ministry takes its decision, the State Government
would initiate appropriate action accordingly.
11.Thereafter, a affidavit-in-reply was
filed by Mr.Narayan Madhu, Deputy Collector,
Mundra, on 2.4.2014 stating that in view of the
present writ petition, the Office of the
Collector has constituted a Committee comprising
(1) Prant Officer, Mundra, (2) Executive
Engineer, Irrigation Department (State), Bhuj,
(3) Executive Engineer, Irrigation Department
(Panchayat), Bhuj, (4) Deputy Executive Engineer,
Road & Building Department, (State), Mundra (5)
Deputy Executive Engineer, Road & Building
Department, (Panchayat), Mundra and (6) DILR,
Bhuj. Since the issues raised in the captioned
writ petition being highly technical involving
officers and experts from various offices, he
requested to grant 3 to 4 months time to
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undertake the task effectively and to submit the
report before this Court.
12.Lastly, a affidavit-in-reply was filed
by Prant Officer Mundra on 23.9.2014 stating that
the Committee constituted by the Collector, Bhuj
conducted a site inspection on 19.9.2014 and
prepared rojkam and has also taken photographs.
The Committee found that there is no bunding and
obstruction to the natural flow of water by the
national highway / state highway, railway bridge
with APSEZ area. As regards to 14 rivers, the
Committee has submitted detailed report as
under:-
Sr. |
Name of the river |
Remark |
s |
|---|---|---|---|
No. |
|||
| 1 | Kundal River: |
Upon |
site inspection, no |
type |
of obstruction has been |
||
found |
with reference to the |
||
river |
as shown in the |
||
revenu |
e records and the |
||
water |
can flow easily. |
||
| 2 | Shiracha Chhello: |
No wa |
ll has been constructed |
in Sh |
iracha Chhello. In the |
||
river |
portion, barbed wire |
||
fencin |
g can be seen. From |
||
the |
photographs it is |
||
clearl |
y visible that the |
||
water |
can flow through the |
Page 15 of 35
C/WPPIL/122/2013 CAV JUDGMENT
Sr.No. |
Name of the river |
Remarks |
|---|---|---|
culvert of the Adani Railway |
||
Road Bridge, No type of |
||
obstruction or bunding couldbe seen in such passages. |
||
| 3 | Dhaneshwar River: |
No bunding was found and thewater flows without any |
obstruction. |
||
| 4 | Bochavalo Chhello: |
There is railway road,bridge and barbed wire |
fencing. No construction has |
||
been made within the river |
||
and no obstruction has been |
||
found in the flow of thewater. |
||
| 5 | Navinal Chhello: |
No buinding has been done atthe railway road, any of the |
passages under the bridge or |
||
at the river. No type of |
||
construction has been done |
||
and in the end it is seen to |
||
merge in Bochavalo Chhello |
||
as the water does not face |
||
any obstruction. |
||
| 6 | Nagmati River: |
No bunding has been found in |
the railway road, bridge, |
||
passages of the tunnels or |
||
in the river. There is no |
||
possibility that the water |
Page 16 of 35
C/WPPIL/122/2013 CAV JUDGMENT
Sr.No. |
Name of the river |
Remarks |
|---|---|---|
causes flooding as the river |
||
gets divided into two parts, |
||
one of which is 180 mtrs and |
||
other is of 100 mtrs width |
||
and in both cases the banks |
||
are in good condition. The |
||
water flows without any |
||
obstruction which is evident |
||
from the photographs showing |
||
height and width of the |
||
culvert bridge. |
||
| 7 | Kapuriya River: |
No boundary wall has beenconstructed in the river and |
it has been found that the |
||
water flows easily through |
||
the barbed wire fencing. No |
||
bunding has been found at |
||
the railway road, passages |
||
under culvert bridge and the |
||
water flows without any |
||
obstruction. |
||
| 8 | Dhrabvalli River: |
No wall has been constructed |
in the river. No bunding has |
||
been found at the railway |
||
road, passages under culvert |
||
bridge and the water flows |
||
without any obstruction. |
||
| 9 | RasapirChhell |
o No construction has been |
Page 17 of 35
C/WPPIL/122/2013 CAV JUDGMENT
Sr.No. |
Name of the river |
Remarks |
|
|---|---|---|---|
| and 10 |
andDahiyavaloChhello: |
found in the flow ofwater. There is wire fenas evidently seen fromphotographs and water isobstructedfromflothrough it. |
thecingthenotwing |
| 11 |
Kevli River and |
Wired fencing has been |
done |
| and 12 |
Bhukhi River: |
in the Kevli River andtype of construction |
nohas |
been found to be made inriver and no blockages |
thehas |
||
been found at the rai |
lway |
||
road or culvert bridge |
and |
||
the water flows withoutobstruction. |
any |
||
| 13 and |
Lunivali River and |
As seen from the photogr |
aphs |
14 |
Lunivalo Chhello: |
there are pipe culvert |
s at |
railway road bridge at |
the |
||
Luni river which is in |
the |
||
Luni village and water f |
lows |
||
easily without obstruc |
tion |
||
through the wired fenc |
ing. |
||
No construction hasfound in the river. Luni |
beenvalo |
||
Chhello passes through |
road |
||
railway culvert bridge |
and |
||
the river flows through |
the |
||
wire fencing without |
any |
Page 18 of 35
C/WPPIL/122/2013 CAV JUDGMENT
Sr. Name of the riverRemarks
No.
obstruction. No construction
has been made in the river
and the water flows without
any obstruction.
13.At the outset, Mr.Shalin Mehta, learned
Senior Counsel for the petitioners fairly
submitted that he is not pressing for prayer “A”
and “B” made in the writ petition, as above.
Mr.Mehta vehemently argued that this public
interest litigation is not adversarial litigation
but it is in a nature of inquisitorial
litigation. The Government is not doing its bit.
Rivers cannot be a trust of private ownership.
Respondent No.7 has spoiled, dried and desecrated
the rivers. Mr.Mehta further argued that the
Committee constituted by the Ministry of
Environment and Forest is a toothless committee
as it has mere recommendatory powers and even its
feeble recommendations are not being acted upon.
The damage currently being caused to the rivers
does not come within the purview of the committee
and it has now become functus-officio. Even
though,Mr.Mehtatookustovarious
recommendations made by the Committee in its
report and placed reliance on large-scale
reference to sketches, maps and drawings filed
before this Court. Mr.Mehta further argued that
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the report of the Prant Officer is no report. It
has several infirmities. It is not filed pursuant
to any direction of this Court and its only on
the basis of the respondent-Collector’s opinion
and they do not have any locus or power to
undertake the exercise of appointing a committee.
In their earlier affidavit-in-reply filed on
2.4.2014, they have stated that the members of
the committee have opined that it would be
essential to acquire opinion of experts and facts
can only be ascertained on the basis of such
expert opinion. However, when the committee
finally came up with a report vide affidavit-in-
reply filed on 23.9.2014 by the Prant Officer,
Mundra, no such expert opinions have been sought
for or relied upon. It is solely based on alleged
site-inspection. Therefore, there must be an
independent fact finding commission. He has,
therefore, requested to appoint an independent
commission to look into the matter and direct the
State Government to take over the areas in
question and to restore it to its original
natural conditions by removing encroachments and
obstructions that are blocking/obstructing the
flow of rivers.
13.1Mr.Mehta also took us to Regulation No.6
(10) of the “General Development Control
Regulations for Special Economic Zone, 2007”
Page 20 of 35
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which states that no developments shall be
permitted in area designated for water body, pond
and talav. Regulation No.8 of the said
Regulations stipulates as under:-
“8.Distance from water course:-No
development whatsoever, whether by
filling or otherwise shall be carried
out within 30 Mts. from the boundary of
the bank of the river where there is no
river embankment and within 15 Mts. or
such distance as may be prescribed under
any other general or specific orders of
Government and appropriate Authority
whichever is more, from river where
there is river embankment but in case of
kans, nala, canal, talav, lake, water-
bodies etc. it shall be 9.00 mts.”
Mr.Mehta further submitted that in spite
of such stipulation they have made construction
in violation of aforesaid regulations as
evidently noticed from the report of the Prant
Officer.
13.2Lastly, Mr.Mehta has placed reliance on
following decisions:-
1.In CAV Judgment dated 20/6/2014 passed
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in Writ Petition (PIL) No.231 of 2013, in the
matter between Kharai Juth Gram Panchayat v.
State of Gujarat & ors., this Court has observed
in para 11 as under:-
“11. Mining is an important revenue-
generating industry. However, one cannot allow
our national assets to be placed into the hands
of companies without a proper mechanism in
place and without ascertaining the credibility
of the user agency.
The mining operation is hazardous in nature. It
impairs ecology and people's right of natural
resources. The entire process of setting up and
functioning of mining operation require utmost
good faith and honesty on the part of the
intending entrepreneur. For carrying on any
mining activity close to township which has
tendency to degrade environment and are likely
to affect air, water and soil and impair the
quality of life of inhabitants of the area,
there would be greater responsibility on the
part of the entrepreneur. The fullest
disclosures including the potential for
increased burdens on the environment consequent
upon possible increase in the quantum and
degree of pollution, has to be made at the
outset so that public and all those concerned
including authorities may decide whetherthe
permission can at all be granted for carrying
on mining activity. The regulatory authorities
have to act with utmost care in ensuring
compliance of safeguards, norms and standards
to be observed by such entrepreneurs. When
questioned, the regulatory authorities have to
show that the said authorities acted in the
manner enjoined upon them. Where the regulatory
authorities, either connive or act negligently
by not taking prompt action to prevent, avoid
or control the damage to environment, natural
resources and peoples' life, health and
property, the principles of accountability for
restoration and compensation have to be
applied.
The development and the protection of
environments are not enemies. If without
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degrading the environment or minimising adverse
effects thereupon by applying stringent
safeguards, it is possible to carry on
development activity applying the principles of
sustainable development, in that eventuality,
the development has to go on because one cannot
lose sight of the need for development of
industries, irrigation resources and power
projects etc. including the need to improve
employment opportunities and the generation of
revenue. A balance has to be struck. We may
note that to stall fast the depletion of
forest, series of orders have been passed by
the Supreme Court in T. N. Godavarman's case
regulating the felling of trees in all the
forests in the country. Principle 15 of Rio
Conferenceof1992relatingtothe
applicability of precautionary principle which
stipulates that where there are threats of
serious or irreversible damage, lack of full
scientific certainty shall not be used asa
reason for proposing effective measures to
prevent environmental degradation is also
required to be kept in view. In such matters,
many a times, the option to be adopted is not
very easy or in a strait-jacket. If an activity
is allowed to go ahead, there may be
irreparable damage to the environment and if it
is stopped, there may be irreparable damage to
economic interest. In case of doubt, however,
protection of environment would have precedence
over the economic interest. Precautionary
principle requires anticipatory action to be
taken to prevent harm. The harm can be
prevented even on a reasonable suspicion. It is
not always necessary that there should be
direct evidence of harm to the environment.(See
M.C. Mehta Vs. Union of India and ors.,
reported in (2004) 12 SCC 118 and T.N.
Godavarman Thirumulpad Vs. Union of India and
ors. reported in (2008) 2 SCC 222).”
2.In reportable judgment dated 4/9/2014
passed in Criminal Appeal No.499 of 2011 and
other allied Criminal Appeals, the Honourable
Supreme Court has observed in para 30 & 55 as
under:-
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“30.The mining of aggregates in rivers
has led to severe damage to river, including
pollution and changes in levels of pH.
Removing sediment from rivers causes the river
to cut its channel through the bed of the
valley floor, or channel incision, both
upstream and downstream of the extraction site.
This leads to coarsening of bed material and
lateral channel instability. It can change the
riverbed itself. The removal of more than 12
million tonnes of sand a year from the Vembanad
Lake catchment in India has led to the lowering
of the riverbed by 7 to 15 centimetres a year.
Incision can also cause the alluvial aquifer to
drain to a lower level, resulting in a loss of
aquifer storage. It can also increase flood
frequency and intensity by reducing flood
regulation capacity. However, lowering the
water table is most threatening to water
supply exacerbating drought occurrence and
severity as tributaries of major rivers dry up
when sand mining reaches certain thresholds.”
“55. There cannot be any two opinions that
natural resources are the assets of the nation
and its citizens. It is the obligation of all
concerned, including the Central and the State
Governments, to conserve and not waste such
valuable resources. Article 48-A of the
Constitution requires that the State shall
endeavour to protect and improve the
environment and safeguard the forests and wild
life of the country. Similarly, Article 51-A
enjoins a duty upon every citizen to protect
and improve the natural environment including
forests, lakes, rivers and wild life, and to
have compassion for all the living creatures.
In view of the Constitutional provisions, the
Doctrine of Public Trust has become the law of
the land. The said doctrine rests on the
principle that certain resources like air, sea,
waters and forests are of such great importance
to the people as a whole that it would be
highly unjustifiable to make them a subject of
private ownership.”
3.In the case of City and Industrial
Development Corporation v. Dosu Aardeshir
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Bhiwandiwala and Ors., reported in AIR 2009 SC
571, the Hon’ble Supreme Court observed in para
22 and 27 as under:-
“22. In our opinion, the High Court while
exercising its extraordinary jurisdiction under
Article 226 of the Constitution is duty bound
to take all the relevant facts and
circumstances into consideration and decide for
itself even in the absenceofproper
affidavitsfromtheStateandits
instrumentalities as to whether any case at all
is made out requiring its interference on the
basis of the material made available on
record. There is nothing like issuing an ex-
parte writ of Mandamus, order or direction in a
public law remedy. Further, while considering
validity of impugned action or inaction the
court will not consider itself restricted to
the pleadings of the State but would be free to
satisfy itself whether any case as such is made
out by a person invoking its extra ordinary
jurisdiction under Article 226 of the
Constitution. The court while exercising its
jurisdiction under Article 226 is duty bound
to consider whether :
(a) adjudication of writ petition involves
any complex and disputed questions of facts
and whether they can be satisfactorily
resolved;
(b) petition reveals all material facts;
(c) the petitioner has any alternative or
effective remedy for the resolution of the
dispute;
(d) person invoking the jurisdiction is
guilty of unexplained delay and laches;
(e) ex facie barred by any laws of
Limitation;
(f) grant of relief is against public
policy or barred by any valid law; and host of
other factors.
The court in appropriate cases in its
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discretion may direct the State or its
instrumentalities as the case may be to file
proper affidavits placing all the relevant
factstrulyandaccuratelyforthe
consideration of the court and particularly in
cases where public revenue and public interest
are involved. Such directions always are
required to be complied with by the State. No
relief could be granted in a public law remedy
as a matter of course only on the ground that
the State did not file its counter affidavit
opposing the writ petition. Further, empty and
self-defeating affidavit or statements of
Government spokesmen by themselves do not form
basis to grant any relief to a person in a
public remedy to which he is not otherwise
entitled to in law.”
“27.It will not be appropriate to dispose of
the matter without one word about the conduct
of the State Government reflecting highly
unsatisfactory state of affairs. We express our
grave concern as to the manner in which State
has conducted in this case. It is the
constitutional obligation and duty of the State
to place true and relevant facts by filing
proper affidavits enabling the court to
discharge its constitutional duties. The State
and other authorities are bound to produce the
complete records relating to the case once
Rule is issued by the court. It is needless to
remind the Governments that they do not enjoy
the same amount of discretion as that of a
private party even in the matter of conduct of
litigation. The Governments do not enjoy any
unlimited discretion in this regard. No one
need to remind the State that they represent
the collective will of the society.”
4.In the case of Manohar Joshi v. State of
Maharashtra and others, reported in (2012) 3 SCC
619, the Hon’ble Supreme Court observed in para
185 as under:-
“185.Public Interest Litigation is not in
the nature of adversarial litigation, but it is
a challenge and an opportunity to the
government and its officers to make basic human
rights meaningful as observed by this Court in
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paragraph 9 of Bandhua Mukti Morcha Vs. Union
of India [AIR 1984 SC 802]. By its very nature
the PIL is inquisitorial in character. Access
to justice being a Fundamental Right and
citizen’s participatory role in the democratic
process itself being a constitutional value,
accessing the Court will not be readily
discouraged. Consequently, when the cause or
issue, relates to matters of good governance in
the Constitutional sense, and there are no
particular individuals or class of persons who
can be said to be injured persons, groups of
persons who may be drawn from different walks
of life, may be granted standing for canvassing
the PIL. A Civil Court acts only when the
dispute is of a civil nature, and the action is
adversarial. The Civil Court is bound by its
rules of procedure. As against that the
position of a Writ Court when called upon to
act in protection of the rights of the citizens
can be stated to be distinct.”
14.On the contrary, Mr.Mihir Thakore,
learned Senior Counsel appearing on behalf of
respondent No.7 vehemently argued that they have
carried out their activities on the land allotted
to them, as demarcated in the maps of the revenue
department and as per the terms and conditions
laid down in the allotment orders and
environmental clearance certificates. They have
not caused any destruction or bunding or
diversion or obstruction on any rivers, much less
the alleged 14 rivers. Mr.Thakore further argued
that the report dated 18.4.2013 of the Committee
constituted by the Ministry of Environment &
Forests, Government of India, is not germane to
the subject matter of the present writ petitions.
Neither the terms of reference of the committee
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for inspection talks about the alleged blocking
of 14 rivers nor the said report mentions alleged
blockage or obstruction of rivers by the company.
14.1Mr.Thakore further submitted that, in
any case, the Committee constituted by the
Ministry of Environment and Forests, Government
of India, to look into the allegations has
submitted their report with recommendations and
it is for the Government to take any remedial or
decisive action and they would abide by such
directions.
15.Mr.Vandan Baxi, learned AGP for
respondent Nos.3 and 5 submitted that the report
filed by the Prant Officer, Mundra clinches the
issue as the Committee constituted by the
Collector, Bhuj has found that there is no
bunding and obstruction to the natural flow of
water by the national highway / state highway,
railway bridge within the APSEZ area. The
Committee has also filed detailed report as
regard to the 14 rivers in question. He further
submitted that nevertheless in view of the fact
that the Committee constituted by the Ministry of
Environment and Forests has submitted its report
and it is for the said Ministry to take a
decision in view of such report and once the said
Ministry takes its decision, the State Government
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would initiate appropriate action accordingly.
16.Having heard both the parties and upon
minutely perusing the records made available to
us, it is evidently clear that the petitioners
have sought quashing of the respondent –
Collector’s allotment orders allegedly allotting
lands which has allegedly resulted into
encroachment on river beds on 14 rivers mentioned
in this writ petition.However,from the above
discussion, it is very well construed that the
terms of reference of the committee constituted
by the Ministry of Environment and Forests
(MoEF), New Delhi to look into the complaints
regarding severe impact upon environment safety
and integrity committed by M/s.Adani Port and SEZ
Ltd does not refer to the alleged blocking of 14
rivers by the respondent-company, which is the
subject matter in these writ petitions. Though
the Committee has come to the conclusion that the
respondent-company, which has been granted
clearance in different phases beginning the year
1995 has led to massive ecological changes with
adverse impacts, it does not indicate and
reference to the alleged blocking of 14 rivers by
the respondent-company. Even Mr.Mehta, learned
Senior Counsel appearing for the petitioners has
submitted that the damage currently being caused
to the rivers does not come within the purview of
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the committee and it has now become functus-
officio. True it is that we cannot claim to be
experts; but we need not to see what is ex-facie
evident.Therefore,notwithstandingthe
protracted arguments advanced and the large-scale
reference to sketches, maps and drawings filed
before this Court, we are of the opinion that
the report of the Committee constituted by the
Ministry of Environment and Forests (MoEF), New
Delhi is not germane to the subject matter of
these writ petitions.
17.In view of the above, let us examine the
report of the committee constituted by the
Collector, Bhuj. The said Committee consisting of
high ranking Government officials was constituted
specifically to look into the issues raised in
the captioned writ petitions. The aforesaid
committee conducted a site inspection on
19.9.2014 and prepared rojkam and has also taken
photographs, which is filed in this Court by way
of affidavit. The Committee found that there is
no bunding and obstruction to the natural flow of
water by the national highway/state highway,
railway bridge with APSEZ area.The said
Committee has also filed detailed report as
regard to the present position of 14 rivers in
question. Mr.Mehta has raised preliminary
objection to filing such report and has further
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contended that such report is not filed pursuant
to any direction of this Court and its only on
the basis of the respondent-Collector’s opinion
and they do not have any locus or power to
undertake the exercise of appointing a committee.
We do not find any force in the above contention
of Mr.Mehta as on one side, he has heavily relied
upon the report filed by the Committee
constituted by the Ministry of Environment and
Forests (MoEF), New Delhi, which was also not
constituted pursuant to any direction of this
Court and on the other side, he contends that the
report of the committee constituted by the
Collector, Bhuj is not filed pursuant to any
direction of this Court and its only on the basis
of the respondent-Collector’s opinion and they do
not have any locus or power to undertake the
exercise of appointing a committee.
18.Mr.Mehta further contended that in their
earlier affidavit-in-reply filed on 2.4.2014,
they have stated that the members of the
committee constituted by the Collector, Bhuj have
opined that it would be essential to acquire
opinion of experts and facts can only be
ascertained on the basis of such expert opinion.
However, when the committee finally came up with
a report vide affidavit-in-reply filed on
23.9.2014 by the Prant Officer, Mundra, no such
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expert opinions have been sought for or relied
upon. It is solely based on alleged site-
inspection. Therefore there must be an
independent fact finding commission. He has,
therefore, requested to appoint an independent
commission to look into the matter and direct the
State Government to take over the areas in
question and to restore it to its original
natural conditions by removing encroachments and
obstructions that are blocking/obstructing the
flow of rivers.
18.1As regards the contention that the
report has been filed without relying upon
experts opinion, we do not find any force in the
said contention as the Committee constituted by
the Collector, Bhuj comprises of high ranking
Government officials having adequate technical
expertise. As regards the contention for
appointing an independent fact finding commission
to look into the matter as the report of the
aforesaid committee is not satisfactory, in our
view and in our reading of the report, no
blockage, obstruction and bunding to the natural
flow of above 14 rivers in question are found.
Prima-facie, in our opinion, there is no cause or
concern to appoint an independent fact finding
commission to look into the matter. We are also
apprised of the facts that the respondent-company
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has been granted phase-wise Environmental
Clearance beginning the year 1995 by the Ministry
of Environment and Forests (MOEF), Government of
India, New Delhi for their project and the State
Government has allotted various parcels of lands
to the respondent-company and they have developed
the area pursuant to such Environmental Clearance
and allotment of lands. Therefore, we cannot
accede to the above request made by the learned
counsel for the petitioners.
19.We have gone through the decisions of
this Court as well as of the Hon’ble Supreme
Court relied upon by the learned Senior Counsel
for the petitioners. We do not find the ratio
decidendi propounded by the said decisions will
be of any help to the petitioners in the facts
and circumstances of the present case. The prime
contention or concern which appears on the part
of the petitioners is that 14 rivers were flowing
and due to allotment of the land and resultant
development, the respondent-company has blocked
natural flow of water in above 14 rivers which
has resulted into bunding of rivers. However, as
narrated above, the report submitted by the
Committee constituted by the Ministry of
Environment and Forests (MoEF), New Delhi as well
as the report of the inspection carried out by
high ranking Government officials clearly reveals
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that no where natural flow of rivers is blocked
or obstructed in such a way that it may result
into bunding. Even otherwise also, 14 rivers
appear to be seasonal in nature and so during
rainy season, there may be flowing water and
during the end of winter and summer, they must be
getting dry. The nature of flowing water is such
if there is any blockage in the way of canal,
then naturally, it may result into bunding of
adjacent land, but in both the reports referred
above, nowhere bunding is noticed which itself
clearly indicative that the respondent company
has not done material change in the flow of water
and river-bed by which major blockage results
into bunding. In view of the aforesaid
observations made by the committee, we are
convinced that no direction is required to be
issued in the matter and the complaint and
grievance raised by the petitioners appears to be
baseless.
20.In view of the aforesaid discussion, we
do not find any merit in the writ petition. The
writ petition fails and is accordingly dismissed.
Notice stands discharged. No order as to cost.
petitions, Civil Applications, referred above, do
not survive and are disposed of accordingly.
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pathan
(V.M.SAHAI, ACJ.)
(R.P.DHOLARIA,J.)
Page 35 of 35
2 issues framed by the court
Did the alleged obstruction of 14 rivers by port and SEZ development warrant quashing land allotments and clearances or directing restoration?
Was an independent fact-finding commission required to examine the alleged river obstructions?
Colour shows how this judgement treated each authority
Shailesh R.Shah vs. State of GujaratReferred¶50
Shailesh R.Shah vs. State of Gujarat reported at 2002(3) GLR 447.
Kharai Juth Gram Panchayat v. State of Gujarat & ors.Distinguished¶140
Kharai Juth Gram Panchayat v. State of Gujarat & ors.
reportable judgment dated 4/9/2014 passed in Criminal Appeal No.499 of 2011Distinguished¶147
City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors.Distinguished¶155
AIR 2009 SC 571 · Who else cites this
Manohar Joshi v. State of Maharashtra and othersDistinguished¶169
(2012) 3 SCC 619 · Who else cites this
AASARIYA LAKHA GILVA
UNION OF INDIA
State of Gujarat
Ministry of Environment and Forest
M/s.Adani Port and SEZ Ltd.
VIJAY MANOHAR SAHAI
R.P.DHOLARIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court