Bombay High Court
City Industrial Development ... vs State Of Maharashtra Thr The ... on 24 January, 2024
Author: Gs Patel
Bench: G.S.Patel
2024:BHC-AS:4128-DB CIDCO V State of Maharashtra & Ors
901-aswp-12220-2022+JR2.doc
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12220 OF 2022
City Industrial Development
Corporation,
CIDCO Bhavan, CDB Belapur,
...Petitioner
Navi Mumbai. (Orig. Garnishee Noticee)
~ versus ~
1. State of Maharashtra,
Through the EnvironmentDepartment,
Room No 217, New Administrative
Building, Mantralaya,
Mumbai 400 032.
Email: [email protected]
2. Maharashtra Coastal Zone
Management Authority,
Environment Department,
Room No 217, New Administrative
ARUN
Building, Mantralaya,
RAMCHANDRA
SANKPAL Mumbai 400 032.
Digitally signed by
ARUN
Email: [email protected]
RAMCHANDRA
SANKPAL
Date: 2024.01.29
17:08:58 +0530 3. District Collector, Raigad,
Office of the District Collector,
At/PO Alibag, Raigad 402 201.
Email:
[email protected]
4. Divisional Commissioner,
Konkan Division, having it office opp.
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Jehangir Art Gallery,
Old Secretariat, Fort,
Mumbai 400 032.
Email: [email protected]
5. Nandkumar Waman Pawar,
Power House, 3rd Floor, MD Kini
Road, Bhandup Village (East),
Mumbai 400 042.
Email: [email protected] ...Respondents
WITH
WRIT PETITION NO. 12225 OF 2022
1. Navi Mumbai IIA Pvt Ltd,
(Formerly known as Navi Mumbai
SEZ Pvt Ltd),
A company incorporated under the
provisions of the Companies Act, 1956,
having its registered office at NMSEZ
House, Sector 10-B, Koper-Nhava
Road, Post Gavhan, Ulve (West),
Taluka Panvel, District Raigad,
Navi Mumbai 410 206.
Email: [email protected]
2. Nilesh Kadu,
an adult Indian inhabitant having his
office at NMSEZ House, Sector 10-B,
Koper-Nhava Road, Post Gavhan, Ulve
(West), Taluka Panvel, District Raigad,
Navi Mumbai 410 206. ...Petitioners
~ versus ~
1. State of Maharashtra,
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Through the Environment Department,
Room No 217, New Administrative
Building, Mantralaya,
Mumbai 400 032.
Contact No: 022-22029388
Email: [email protected]
2. Maharashtra Coastal Zone
Management Authority,
Environment Department,
Room No 217, New Administrative
Building, Mantralaya,
Mumbai 400 032.
Contact No: 022-22029388
Email: [email protected]
3. District Collector, Raigad,
Office of the District Collector,
At/PO Alibag,
Raigad 402 201.
Contact No: 02141-22118
Email:
[email protected]
4. Divisional Commissioner,
Konkan Division, having it office at Opp
Jehangir Art Gallery,
Old Secretariat, Fort,
Mumbai 400 032.
Contact No: 022-27571324
Email: [email protected]
5. City Industrial
Development Corporation
of Maharashtra Ltd,
A Government Company, incorporated
under the Companies Act, 1956, having
its registered office at Nirmal, 2nd
Floor, Nariman Point,
Mumbai 400 021
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Contact No: 022-6650-0900
Email: [email protected]
6. Nandkumar Waman Pawar,
Power House, 3rd Floor, MD Kini
Road, Bhandup Village (East),
Mumbai 400 042.
Contact No: 9819831638
Email: [email protected] ...Respondents
WITH
WRIT PETITION NO. 13476 OF 2018
1. Nandkumar Waman Pawar,
Pawer House, 3rd Floor, MD Kini
Road, Bhandup Village (East),
Mumbai 400 042.
2. Haruman Koliwada
Macchimar Vikas Sanstha
Maryadit,
Post - NS Karanja, Taluka-Uran,
District Raigad 400 707.
3. Parmanand Jaywant Koli,
Chairman of the Petitioner No 1,
Hanuman Kolivada, Post - NS Karanja,
Taluka-Uran, District Raigad 400 704. ...Petitioners
~ versus ~
1. City Industrial
Development Corporation
of Maharashtra Ltd,
A Government Company, incorporated
under the Companies Act, 1956, having
its registered office at Nirmal, 2nd
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Floor, Nariman Point,
Mumbai 400 021.
2. Union of India,
Through the Ministry, Environment,
Forest & Climate Change, Paryavaran
Bhavan, Jorbagh Road,
New Delhi 110 003.
3. State of Maharashtra,
Through the Environment Department,
Room No 217, New Administrative
Building, Mantralaya,
Mumbai 400 032.
4. Maharashtra Coastal Zone
Management Authority,
Environment Department,
Room No 217, New Administrative
Building, Mantralaya,
Mumbai 400 032.
5. Maharashtra Pollution
Control Board,
Kalpataru Point, 3rd and 4th Floor,
Sion Circle, Mumbai 400 022.
6. District Collector,
Office of the District Collector,
At/PO Alibag,
Raigad 402 201.
7. Tehsildar, Uran,
Bazaar Peth, Uran,
Raigad 402 702.
8. Forest Zone Officer, Uran,
Revas Karanja Bldg, Second Floor,
Taluka Uran, District Raigad.
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9. Central Pollution Control
Board,
Parivesh Bhawan, CBD-cum-Office
Complex, East Arjun Nagar,
Delhi 110 032.
10. Additional Principal Chief
Conservator of Forests &
Mangrove Cell,
Office of the Addl Principal Chief
Conservator of Forests & Mangrove
Cell, 2nd Floor, A 'Wing', SRA
Building, AK Marg, Bandra (East),
Mumbai 400 051. ...Respondents
A PPEARANCES
for the petitioner Mr Ravi Kadam, Senior Advocate,
in wp/12220/2022 & with GS Hegde, Senior
for respondent- Advocate, and Rohan Kadam,
CIDCO in i/b PM Bhansali.
wp/12225/2022 &
wp/13476/2018
for the petitioner Dr Milind Sathe, Senior Advocate,
in wp/12225/2022 with Saket Mone, Rubin Vakil,
Rishit Badiani, Ketan Dave &
Gaurav H Gangal, i/b AS
Dayal & Associates.
for the petitioner Ms Meenaz Kakalia.
in wp/13476/2018
for respondent- Ms Jaya Bagwe.
MCZMA
for respondent no 5 Mr Jitendra Jagtap.
in wp/13476/2018
for respondent- Mr PP Kakade, GP, with Mrs MP
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STATE in Thakur, AGP.
wp/12220/2022
for respondent- Mr YD Patil, AGP.
STATE in
wp/12225/2022 &
wp/13476/2018
CORAM : G.S.Patel &
Kamal Khata, JJ.
DATED : 24th January 2024
ORAL JUDGMENT (Per GS Patel J):-
WRIT PETITION NO. 12220 OF 2022 AND WRIT
PETITION NO. 12225 OF 2022:
1. The City and Industrial Development Corporation of
Maharashtra ("CIDCO") is a new town development authority
constituted under the Maharashtra Regional Town Planning Act,
1966 ("MRTP Act"). Its command area lies across Mumbai's
harbour. Part of that land that was first controlled by CIDCO, but is
now under the statutory jurisdiction of the Navi Mumbai Municipal
Corporation ("NMMC"). CIDCO continues to hold certain plots
of land.
2. Almost the entirety or at least the significant majority of
CIDCO's holding was from inception and continues to be low-lying
land. When initially conceived, it was, if not exactly a swamp, at
least so significantly marshy as not to allow for extensive real estate
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development. It was in the nature of things that while planning for a
twin city across the harbour, land had to be readied for development.
This meant that the water, which is saline, affected by tides, and
therefore brackish, had to be handled in a scientific manner with
appropriate civil engineering. The chosen method was what is
known as the Dutch or Polders method. This is essentially a
combination of holding ponds, sluice or flap gates and appropriately
constructed channels or canals. Of course, this method is most
evidently visible in the Netherlands, and this is an adaptation of the
same civil engineering principles. As the tide comes in, the flap
gates which are bi-directional are either opened or allowed to let
water into the holding ponds. When the tide goes out the water level
in these ponds falls. Because these are, as the name suggests, meant
for holding water, this routine prevents water from flooding over the
remaining land..
3. Associated with this rhythmic cycle of tidal inflow and
outflow comes another phenomenon, and that is the natural one of
the growth and resurgence in some cases of mangroves. This is
typical mangrove habitat and protection of mangroves is not only
now recognised by statute but there is an elaborate judgment of this
Court in that regard in a public interest litigation as well. 1 The
importance of mangroves generally, the Court held, and this is also
reflected in a statute, cannot be understated. Mangroves are well-
known to have a significant carbon sequestration potential. They are
known to have always softened the impact of the unexpected
1 Bombay Environmental Action Group & Anr v State of Maharashtra & Ors,
2018 SCC OnLine Bom 2680 : (2019) 1 Bom CR 1 : 2018:BHC-OS:14135-DB.
Judgment dated 17th September 2018.
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flooding (they do not in themselves prevent floods). They are also
significant habitats for various forms of natural life, bird life, marine
life and so on, and there are certain species of vegetation and animal
life that are endemic to mangrove habitats.
4. This means that much of CIDCO's holding is quite literally
fertile ground for environmental battles. On the one hand there is
the cry from those with environmental concerns that these
mangroves, mangroves habitats and everything they represent must
be protected even if there was not a controlling statute. The fact that
there is a statutory recognition, they say, significantly strengthens
their case. It is also argued that it matters not that the holding ponds
and flap gates complexes were not intended to 'generate' mangroves
nor for their resurgence but were primarily intended for land
development. In opposition, CIDCO maintains that the purpose of
the Dutch method was to free up land for developing the twin city.
Mangroves are but an incidental or perhaps even an accidental
consequence. They are not the primary purpose of these systems.
As Mr Kadam puts it on behalf of CIDCO, however desirable the
protection of mangroves may be, those needs must be balanced
against CIDCO's equally legitimate requirements to fulfil its own
statutory purpose. He maintains that there are times when CIDCO
has sought permission for de-silting the holding ponds even if this
comes at the cost of some loss of mangroves; and this very Court
has granted those permissions. There are also instances where
applications have been made to this Court for the destruction of
mangroves citing the overriding public importance of other projects.
Such applications have also been allowed.
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5. This is only by way of background. We are not required in
these two matters to consider any particular application for
mangrove removal. The 5th Respondent to the CIDCO Petition,
Nandkumar Pawar ("Pawar") is a social and environmental
activist. He is also associated in some capacity with a Non-
Governmental Organisation ("NGO") called 'Vanashakti'. We are
not questioning his credentials. There is no occasion to do so.
6. The other stake holder is Navi Mumbai SEZ Private Limited,
now Navi Mumbai IIA Private Limited ("NMIIA"), represented by
Dr Sathe. CIDCO has a stake in this entity.
7. The land with which NMIIA is concerned is at village Panje.
Again, the details of this are unimportant except to note that as
regards village Panje there is a Public Interest Litigation No 106 of
2021 filed by Vanashakti which we will be hearing shortly. That PIL
seeks that Panje be ordered to be declared as either a sanctuary or a
national park or to have some other protective status under the Wild
Life (Protection) Act, 1972.
8. In the CIDCO Petition, the issues began with an order of 11th
November 2020, when the Environment Department, Government
of Maharashtra wrote to the District Collector at Alibaug-Raigad,
saying that the inlet to tidal waters at Panje had been blocked
resulting in a drying up of the water body and of the mangroves.
The letter says that there were allegations of 70 sluice gates being
blocked, thus preventing the inflow of tidal water. There is a
mention of migratory birds and bird life. The letter goes on to say
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that there is a gross violation of Coastal Regulation Zone ("CRZ")
norms. There is a reference to a 3rd March 2020 meeting by the
Hon'ble Minister of Environment with officials from the
Environment Department and a mention of a letter of 4th March
2020 from the Minister issuing directions to stop mangrove
destruction and dumping of debris at village Panje.
9. Paragraph 4 of this communication at page 105 reads as
follows:
"4. In order to protect the mangroves & water body at
village Panje, you are hereby directed to initiate action with
immediate effect as under;
(a) Restore the free flow of tidal water by opening
the sluice gates and removal of the blockages
so that free flow of tidal water reaches to
mangroves and water body at village Panje.
(b) Remove the illegal security cabins erected in
CRZ area immediately.
(c) Stop the work of filling of low lying area in the
said site."
10. The letter is challenged in CIDCO's Petition and in the
NMIIA Petition. Mr Kadam on behalf of CIDCO points out that
CIDCO made two representations of 21st May 2021 and 5th July
2021. The representation of 21st May 2021 is at page 109 of the
CIDCO Petition. The 5th July 2021 representation by CIDCO is at
page 163 of the NMIIA Petition. Both are pending with the State
Government in the Environment Department..
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11. This is an unacceptable state of affairs from the perspective of
administrative law and judicial review of administrative action.
However well-intentioned the communication of 11th November
2020 may have been, it could not have been issued without
minimally giving notice to CIDCO and hearing it. After all, it is
CIDCO that is operating the sluice gates and maintaining the
holding ponds. That hearing could have been held by the Principal
Secretary, Environment Department or by the Collector; it does not
much matter to us which authority held the hearing. But we are
unable to see how on the allegations that have been made and which
are reflected in the communication of 11th November 2020 such a
direction could have been passed.
12. Notably, the 11th November 2020 communication refers to
previous correspondence but in paragraph 1 also refers to allegations
about specific numbers of sluice gates being blocked. Surely, if there
was such an allegation it necessarily meant that the sluice gates had
been blocked by CIDCO. This in turn necessarily meant that the
allegation was against CIDCO. We do not see, therefore, how any
principle of sound administration would have permitted such a
letter to have been written without hearing the person against whom
allegations were made and granting a minimal opportunity of
explaining the position.
13. What makes matters worse is that CIDCO's subsequent
representations have remained as they are without being addressed.
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14. We must strike the appropriate balance. Entirely quashing the
11th November 2020 direction might fall afoul of the doctrine of
unintended consequences. That was after all an order meant for the
protection of mangroves. There is statutory protection to
mangroves. To that extent, the letter is consistent with binding
judgment of this Court. But we are equally mindful that CIDCO's
representations cannot just be kept pending like this. CIDCO and
NMIIA are of course entitled to be heard on CIDCO's
representation for a modification, variation or a recall of the 11th
November 2020 directive. But it is equally important that Pawar or
the NGO with whom he is associated, viz., Vanashakti, should also
be heard by the State Government so that there is complete
transparency in the process. Vanashakti is not a party to the CIDCO
or the NMIIA Petitions and we are not directing its joinder, but we
are exercising our discretion and permitting either Vanashakti or
Pawar (but not both) to be afforded an opportunity by the State
Government while considering CIDCO's two representations of
21st May 2021 and 5th July 2021.
15. In the first instance, since the matter has come as far as the
High Court, and since the impugned communication is from the
Environment Department, , we require the present Principal
Secretary, Environment Department, GoM to give notice to all
three entities, viz., CIDCO, NMIIA and Pawar.
16. We are not permitting anybody else to be heard. We say this
because during the arguments Ms Kakalia attempted a submission
that in Writ Petition No 13476 of 2018 there were some fisherfolk
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who were affected but that Writ Petition is not filed by third parties
alone. That group of Petitioners is led by none other than Pawar
himself. Accordingly, it is Pawar who will represent all interests,
whether it is for the fisherfolk or for environmental concerns or the
environmental NGOs. Under no circumstances will Pawar be
afforded multiple voices at one hearing.
17. The Principal Secretary, Environment Department, is
required to give notice to all three. Each will be entitled to put in
brief notes or submissions. All three are to be heard. None are
permitted to seek adjournments from the schedule fixed by the
Principal Secretary. We do not permit written submissions to be put
in to answer or to counter the written submissions of other parties.
The Principal Secretary is required to consider the two
representations made by CIDCO and to decide whether the 11th
November 2020 direction requires correction, modification,
amendment or recall. All contentions are expressly kept open. We
are making it clear that we are not presently setting aside the 11th
November 2020 order in itself.
18. The Principal Secretary must consider the representations
and hear all three parties and pass a reasoned order as early as
possible but preferably in no more than 12 weeks from today.
19. But in both the CIDCO and the NMIIA Petition, one further
challenge remains. This is to an order of the National Green
Tribunal ("NGT"), a copy of which is at page 113 of the CIDCO
Petition. It is dated 15th April 2021. There is then an order in
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Execution dated 1st July 2021, which is at page 161 of the NMIIA
Petition. There is finally an order in review by the NGT. This is of
23rd February 2022 and a copy is at page 135 of the CIDCO
Petition.
20. The NGT Review order is on the face of it completely
contrary to every concept of law and procedure. The Review was, to
begin with, heard by a Bench of six members, only two of whom
were common to the three-member Bench that heard the order
under review. On its own. this makes the review order completely
vulnerable. Second, one look at the Review order indicates that in
fact, in the guise of a review, the NGT's six-member Bench did
precisely that which the Supreme Court has time and again said
cannot be done, which is to impermissibly expand the original order
on entirely new material and without a single finding as to how this
could possibly lie within the frame of review, properly so called. It is
settled jurisprudence that there is no inherent power of review. That
power must be specifically conferred. It can only be exercised
according to well settled principles and in accordance with statutory
provisions conferring the power of Review. Under Section 19 of the
National Green Tribunal Act, 2010 ("NGT Act"), the power of
review has to be exercised in consonance with the Code of Civil
Procedure, 1908 ("CPC"). This then takes us to a consideration of
Section 114 and Order 47 of the CPC. It is also settled jurisprudence
that before embarking on any review exercise, the Bench before
which a Review Petition is brought must first address whether a
ground is made out for review or not within the meaning of the
governing statute. The order in question of the six-member Bench
does not even attempt to address this aspect of the law. There is no
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mention of Section 19 of the NGT Act or any portion of the CPC.
The six-member Bench has simply proceeded on the footing that a
review means an entire or a wholesale rethink. That is not the frame
of the law. Indeed, that is precisely what the law forbids because it is
settled law that there has to be finality to decision making and to
litigation. Judgments of Courts and Tribunals are not works
constantly in progress. At some point they must attain finality.
21. The first order of the NGT of 15th April 2021 is vulnerable
for another reason. To begin with it was ex parte. Everything that we
have said about the 11th November 2020 order of the Government
will equally apply to the NGT order.
22. The only person to be heard here was Pawar. Allegations
against CIDCO are noted in paragraph 3. No notice was issued to
CIDCO. This was clearly therefore an ex parte application without
notice to CIDCO. There is no finding that CIDCO was absent
though given notice and though served.
23. Now the principles regarding ex parte applications are well
settled. This law has been perhaps best enunciated by the then
Queen's Bench Division in England in Alexander Tugushev v Vitaly
Orlov.2 This was also referred to in a Division Bench judgment
delivered by one of us (GS Patel, J) in Kewal Ashokbai Vasoya v
Saurabhakti Goods Pvt Ltd.3 The relevant portions read:
"17. We believe this to be only a summation of long-
2 [2019] EWHC 2031 (Comm).
3 2022 SCC Online Bom 3335.
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settled law. It has been the law in this country and in
England, where orders without notice are common. These
include freezing orders in Mareva injunctions, frequently
granted without notice on affidavit material alone, and
Anton Piller search-and-seizure orders, typically without
notice. The underlying principles were succinctly set out in
a decision of 26th July 2019 by the Hon'ble Mrs. Justice
Carr, sitting in the Commercial Court of England and
Wales, a Division of High Court in Alexendar Tugushev v
Vitaly Orlov. She had before her a non-disclosure
application, i.e., an application saying that the plaintiff had
failed to make the required disclosures. Saying the law was
not contentious, Carr J set out the general principles in this
way:
7. The law is non-contentious. The
following general principles can be distilled
from the relevant authorities by way of
summary as follows:
i) The duty of an applicant for a without
notice injunction is to make full and accurate
disclosure of all material facts and to draw the
court's attention to significant factual, legal
and procedural aspects of the case;
ii) It is a high duty and of the first
importance to ensure the integrity of the
court's process. It is the necessary corollary of
the court being prepared to depart from the
principle that it will hear both sides before
reaching a decision, a basic principle of
fairness. Derogation from that principle is an
exceptional course adopted in cases of
extreme urgency or the need for secrecy. The
court must be able to rely on the party who
appears alone to present the argument in a
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way which is not merely designed to promote
its own interests but in a fair and even-handed
manner, drawing attention to evidence and
arguments which it can reasonably anticipate
the absent party would wish to make;
iii) Full disclosure must be linked with fair
presentation. The judge must be able to have
complete confidence in the thoroughness and
objectivity of those presenting the case for the
applicant. Thus, for example, it is not
sufficient merely to exhibit numerous
documents;
iv) An applicant must make proper
enquiries before making the application. He
must investigate the cause of action asserted
and the facts relied on before identifying and
addressing any likely defences. The duty to
disclose extends to matters of which the
applicant would have been aware had
reasonable enquiries been made. The urgency
of a particular case may make it necessary for
evidence to be in a less tidy or complete form
than is desirable. But no amount of urgency or
practical difficulty can justify a failure to
identify the relevant cause of action and
principal facts to be relied on;
v) Material facts are those which it is
material for the judge to know in dealing with
the application as made. The duty requires an
applicant to make the court aware of the
issues likely to arise and the possible
difficulties in the claim, but need not extend
to a detailed analysis of every possible point
which may arise. It extends to matters of
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intention and for example to disclosure of
related proceedings in another jurisdiction;
vi) Where facts are material in the broad
sense, there will be degrees of relevance and a
due sense of proportion must be kept.
Sensible limits have to be drawn ...
vii) ...
24. Very broadly, the principle is that hearing the opposite party
is the rule and ex parte, i.e., without notice to the other side is the
exception. If a matter has to be moved without notice, reasons must
be specified as to why giving notice would defeat the purpose of the
relief that is sought. In fact, that is the precise frame of Order 39
Rule 3 of the CPC, which reads thus:
"3. Before granting injunction, Court to direct notice to
opposite party.--The Court shall in all cases, except where
it appears that the object of granting the injunction would
be defeated by the delay, before granting an injunction,
direct notice of the application for the same to be given to
the opposite party:
Provided that, where it is proposed to grant an
injunction without giving notice of the application to
the opposite party, the Court shall record the reasons
for its opinion that the object of granting the injunction
would be defeated by delay, and require the applicant--
(a) to deliver to the opposite party, or to send to
him by registered post, immediately after the order
granting the injunction has been made, a copy of the
application for injunction together with--
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(i) a copy of the affidavit filed in support
of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the
applicant, relies, and
(b) to file, on the day on which such injunction is
granted or on the day immediately following that day, an
affidavit stating that the copies aforesaid have been so
delivered or sent."
(Emphasis added)
25. There is no reference by the NGT to any such emergency.
Second, the NGT was required as a judicial tribunal or a quasi-
judicial tribunal to minimally adhere to the requirements or to
demand an adherence to the requirements of all filings before it.
This meant that when a party seeks to move ex parte, i.e., without
notice, it must not only explain why it is doing so but must fairly set
out what are likely to be the defences by the opposite party or the
affected party so that the Court or the Tribunal can arrive at not a
one-sided but at a fair and balanced decision on a consideration of
the rival materials that are before it. We find not one of these
precepts, well-established in law followed by the NGT.
26. Section 19(1) and Section 19(4)(i) read as follows:
"19. Procedure and powers of Tribunal--
(1) The Tribunal shall not be bound by the
procedure laid down by the Code of Civil Procedure, 1908
but shall be guided by the principles of natural justice.
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(2) .........
(3) .........
(4) The Tribunal shall have, for the purposes of
discharging its functions under this Act, the same powers as
are vested in a civil court under the Code of Civil
Procedure, 1908, while trying a suit, in respect of the
following matters, namely:--
(a) .........
(b) .........
(c) .........
(d) .........
(e) .........
(f ) .........
(g) .........
(h) .........
(i) pass an interim order (including granting an
injunction or stay) after providing the parties concerned an
opportunity to be heard, on any application made or appeal
filed under this Act."
27. This obviously means that principles of natural justice must
be followed. Our system of jurisprudence does not contemplate as a
general rule a departure from the audi alteram partem principle.
Indeed, even in cases involving finance and economics, the Supreme
Court itself has invoked this very principle when the consequences
are likely to be serious (for example, in regard to wilful defaulters
and fraud circulars under applicable Reserve Bank of India
guidelines).4
4 State Bank of India & Ors v Rajesh Agarwal & Ors, (2023) 6 SCC 1.
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28. On its own therefore, apart from the next consideration that
we will deal with, the first order of the NGT is clearly unsustainable.
29. But the order is vulnerable for another reason as well. A Full
Bench of this Court of which one of us (GS Patel, J) was a member
and who wrote for the Bench said in Goa Foundation v National
Green Tribunal, Principal Bench,5 that the statute required Western
Zone matters to be heard by members of the Western Zonal Bench.
The first order of the NGT is not by the Western Zonal Bench at all.
30. We are told that the operative portion in paragraph 56 of our
judgment is stayed by the Supreme Court. Paragraph 56 reads thus:
"56. Rule is made absolute in terms of prayer clause (a).
All five impugned notices dated 6th September 2021, 4th
January 2022, 11th April 2022, 27th April 2022 and 26th
August 2022 are quashed and set aside. The constitution of
the Special Bench seated at New Delhi is illegal. Only the
Members of the Western Zonal Bench can hear matters
pertaining to the Western Zonal Bench, including matters
arising from Goa and Maharashtra."
31. But our judgment has not been set aside (as yet). Mr Kadam
and Dr Sathe are correct in saying that there is no possibility of a
Division Bench of this Court now holding contrary to what the Full
Bench had said. The stay of the operative portion of the Full Bench
judgment does not make the judgment itself inapplicable. We need
to pass no further directions in that regard except to say that on the
same principles that are enunciated in that judgment, this is the
5 2022 SCC OnLine Bom 2762.
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additional reason why the first NGT order of 15th April 2021, at
page 113, cannot be sustained.
32. Incidentally, we may note that while staying the operative
portion of the Full Bench decision, the Supreme Court clarified that
since one judicial and one expert member were available for the
Western Zone Bench, all matters pertaining to the Western Zone
Pune, including matters arising from Maharashtra and Goa would
only be heard by the Bench sitting at Pune.
33. This is sufficient for a disposal of both the CIDCO Writ
Petition and the NMIIA Writ Petition.
34. In the CIDCO Petition, Rule is made absolute in terms of
prayer clause (a)(i) which reads thus:
"(a) That by issuance of a writ of certiorari or any other
appropriate writ or direction or order, this Hon'ble court be
pleased to quash and set aside
i. the impugned Orders dated 15.04.2021
(annexed at Ex. G) and 23.02.2022 (annexed at Ex. I)
passed by the Ld. NGT and the review application
no. 3 of 2021 filed by the Petitioners in Original
Application no. 25 of 2021 be allowed."
35. In the result, Rule is made absolute in these terms quashing,
and setting aside the NGT orders of 15th April 2021, the Execution
order of 1st July 2021 and the Review order of 23rd February 2022.
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WRIT PETITION NO. 13476 OF 2016:
36. As regards the Writ Petition No 13476 of 2018 filed by Pawar
allied with fisherfolk, the challenge is to the construction of two
holding ponds. Obviously, that will be covered by the 11th
November 2020 order and since Pawar is representing all interests
funnelled into one before the Principal Secretary, those issues can be
taken up at that time as well. We leave those contentions open also
and this will dispose of Writ Petition No 13476 of 2018.
(Kamal Khata, J) (G. S. Patel, J)
24th January 2024
